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From: Carrie B. Major <cbm@rsclaw.com>Sent: Tuesday, August 11, 2015 11:34 AMTo: Amy E. Parker; Christopher D. Danley; Coy Connelly; Craig S. Nolan; Daniel Krainen;

David J. Lender; Deborah Barnard; Boyles, Gavin; Geoffrey J. Vitt; Gregory A. Weimer; Heather Rider Hammond; Jack Sartore; James F. Bennett; James Messenger; Jennifer Aspinall; John S. Guttman; Kelly J.H. Murrie; Lisa S. Meyer; Matt Byrne; Michael T. Maroney; Nathan P. Eimer; Nessa Horewitch Coppinger; Pietro J. Lynn; R. Bradford Fawley; Ritchie Berger; McDougall, Robert; Robin Stern; Kline, Scot; Selena L. Evans; Steven L. Leifer; Theodore E. Tsekerides

Cc: Harry R. Ryan; Eric J. Morgan; Matthew L. RussoSubject: State of VT v. Atlantic Richfield, et al (MTBE)- TOTAL's BriefAttachments: Vermont - Appellant's Brief.pdf

Follow Up Flag: Follow upFlag Status: Completed

Good Morning:

Attached please find Total Petrochemicals & Refining, USA, Inc.’s Brief that has been filed with the Vermont Supreme Court.

Thank you.

Carrie B. Major Legal Assistant to Harry R. Ryan, III, Esq. Ryan Smith & Carbine, Ltd. 98 Merchants Row-P.O. Box 310 Rutland, Vermont 05702-0310 Direct Line: (802) 786-1041 Fax: (802) 786-1100 Email: cbm@rsclaw.com

CONFIDENTIALITY NOTICE: This e-mail contains proprietary information some of which may be legally privileged. It is for the intended recipient only. If an addressing or transmission error has misdirected this e-mail, please notify the author by replying to it and delete all copies. If you are not the intended recipient you may not use, disclose, distribute, copy, print or rely on this e-mail. If you are the intended recipient please do not forward this e-mail without first considering whether its contents are appropriate for viewing by the next recipient.

IN THE SUPREME COURT OF THE STATE OF VERMONT

VERMONT SUPREME COURT DOCKET NUMBER 2015-204

STATE OF VERMONT,

Plaintiff-Appellee

vs.

ATLANTIC RICHFIELD COMPANY, et al.,

Defendants

TOTAL PETROCHEMICALS & REFINING USA, INC.,

Defendant-Appellant

APPEAL FROM

VERMONT SUPERIOR COURT DOCKET NUMBER 340-6-14 Wncv

BRIEF OF APPELLANT

Harry R. Ryan Eric J. Morgan

RYAN SMITH & CARBINE, LTD. 98 Merchants Row/P.O. Box 310

Rutland, Vermont 05702-0310 Tel. (802) 786-1044 / Fax (802) 786-1100

hrr@rsclaw.com / ejm@rsclaw.com

M. Coy Connelly – admitted pro hac vice Amy E. Parker – admitted pro hac vice

BRACEWELL & GIULIANI LLP 711 Louisiana Street, Suite 2300

Houston, Texas 77002-2770 Tel. (713) 221-1335 / Fax (713) 221-1212

coy.connelly@bgllp.com / amy.parker@bgllp.com

Counsel for Defendant-Appellant TOTAL PETROCHEMICALS & REFINING USA, INC.

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STATEMENT OF THE ISSUES

ISSUE NO. 1

THE SUPERIOR COURT ERRED BY DENYING TOTAL PETROCHEMICALS & REFINING USA, INC.’S MOTION TO DISMISS UNDER V.R.C.P. 12(b)(2) BECAUSE THE VERMONT LONG ARM STATUTE AND ESTABLISHED PRINCIPLES OF FEDERAL DUE PROCESS DO NOT PERMIT THE EXERCISE OF PERSONAL JURISDICTION OVER A NONRESIDENT DEFENDANT BASED SOLELY ON THE UNILATERAL CONDUCT OF A THIRD PARTY OR MERE PARTICIPATION IN AN ALLEGED NATIONAL MARKET.

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TABLE OF CONTENTS

Page

STATEMENT OF THE ISSUES..................................................................................................... i TABLE OF AUTHORITIES ......................................................................................................... iii

STATEMENT OF THE CASE ........................................................................................................1

APPELLATE STANDARD OF REVIEW ......................................................................................2

SUMMARY OF THE ARGUMENT ..............................................................................................3

ARGUMENT ...................................................................................................................................6

A. The Legal Standard ..............................................................................................................6

B. The Undisputed Jurisdictional Facts Require Dismissal .....................................................8 C. TPRI’s Contacts are Insufficient to Support Specific Jurisdiction ......................................9

1. United States Supreme Court’s Unanimous Opinion in Walden

Bars the Exercise of Personal Jurisdiction Based on the Unilateral Conduct of a Third Party........................................................................................11

2. United States Supreme Court Jurisprudence on the Stream of

Commerce Theory Prohibits the Exercise of Personal Jurisdiction Based Solely on Foreseeability ..............................................................................12

3. Plaintiff’s Reliance on Outdated Opinions Issued by the MTBE

MDL Court in the Southern District of New York is Improper ............................16

4. Vermont Precedent is in Accord with the United States Supreme Court .....................................................................................................................19

D. Vermont Courts Cannot Exercise General Jurisdiction Over TPRI Based

on its Extremely Limited Contacts with Vermont ............................................................22

E. Asserting Jurisdiction Over TPRI Would Violate Traditional Notions of Fair Play and Substantial Justice........................................................................................24

CONCLUSION ..............................................................................................................................26

CERTIFICATE OF COMPLIANCE .............................................................................................28

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TABLE OF AUTHORITIES

CASES Page(s)

Asahi Metal Indus. Co. v. Superior Court of California., Solano County, 480 U.S. 102 (1987) (plurality opinion) ................................................................. 13-16, 24-25

Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) .................................................................................. 5, 7, 11-12, 21, 23-24

Calder v. Jones, 465 U.S. 783 (1983) ...................................................................................................................7

Conley v. Crisafulli, 2010 VT 38 ¶ 3, 188 Vt. 11, 999 A.2d 677 (2010) ....................................................................3

Daimler AG v. Bauman, 134 S. Ct. 746 (2014) .................................................................................................. 6-7, 22-24

Dall v. Kaylor, 163 Vt. 274, 658 A.2d 78 (1995) ....................................................................................... 20-21

Dearwater v. Bond Mfg. Co., No. 1:06-CV-154, 2007 WL 2745321 (D.Vt. Sept. 19, 2007) .......................................... 23-24

Emery v. Shell Oil Company, No. 80-2-09 Wncv (Vt. Super. Ct. Jan. 14, 2011) (unpublished) ...................................... 19-20

Fox v. Fox, 2014 VT 100 ¶ 29, 106 A.3d 919, cert. denied, 135 S. Ct. 952, 190 L. Ed. 2d 831 (2015) ............................................................................................................................6, 12

Gates Learjet Corp. v. Jensen, 743 F.2d 1325 (9th Cir. 1984) .................................................................................................22

Godino v. Cleanthes, 163 Vt. 237, 656 A.2d 991 (1995) ......................................................................................... 2-3

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984) ...........................................................................................................22, 24

Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945) ...................................................................................................................6

J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780 (2011) (J. Breyer concurring) ........................................................5, 15, 20, 26

Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602 (5th Cir. 2008) ...................................................................................................23

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CASES Page(s)

Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984) .................................................................................................................11

Makarova v. United States, 201 F.3d 110 (2d Cir. 2000).......................................................................................................3

Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560 (2d Cir. 1996).................................................................................................22, 24

In re MTBE Prods. Liab. Litig., 399 F. Supp. 2d 325 (S.D.N.Y. 2005)......................................................................................16

In re MTBE Prods. Liab. Litig., Master File No. 1:00-1898, MDL 1358 (SAS), M21-88, 2005 WL 106936 (S.D.N.Y. Jan. 18, 2005) ..........................................................................................................16

In re MTBE Prods. Liab. Litig., Master File No. 1:00-1898, MDL No. 1358 (SAS), No. M21-88, 2014 WL 1778984 (S.D.N.Y. May 5, 2014) .................................................................................. 4, 17-19

N. Aircraft, Inc. v. Reed, 154 Vt. 36, 572 A.2d 1382 (1990) .............................................................................................6

N. Sec. Ins. Co. v. Mitec Elecs., Ltd., 2008 VT 96 ¶ 29, 106 A.3d 919, cert. denied, 135 S. Ct. 952, 190 L. Ed. 2d 831 (2015)13, 184 Vt. 303, 965 A.2d 447 .................................................................................3

Porina v. Marward Shipping Co., Ltd., 521 F.3d 122 (2d Cir. 2008)...............................................................................................22, 24

Puerto Rico v. Shell Oil Co., No. 1:07-cv-10470-SAS, Dkt. No. 365 (S.D.N.Y. filed June 12, 2007) ................................17

Robinson v. Overseas Military Sales Corp., 21 F.3d 502 (2d Cir. 1994).........................................................................................................6

Savage v. Galaxy Media & Mktg. Corp., No. 11 Civ. 6791 (NRB), 2012 WL 2681423 (S.D.N.Y. July 5, 2012).....................................7

Schenker v. Assicurazioni Generaeli S.p.A., Consol., No. 98 Civ. 9186, 2002 WL 1560788 (S.D.N.Y. July 15, 2002) ..............................................9

Schwartz v. Frankenhoff, 169 Vt. 287, 733 A.2d 74 (1999) ...............................................................................................7

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CASES Page(s)

Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221 (2d Cir. 2014) (per curiam), cert. denied, 134 S. Ct. 2888 (2014) .......... 7, 22-23

State of Vermont v. MPHJ Tech. Inv., LLC, No. 282-5-13 Wncv (Vt. Super. Ct. August 28, 2014) ...........................................................26

In re Stillwater Capital Partners Inc. Litig., 851 F. Supp. 2d 556 (S.D.N.Y. 2012)........................................................................................9

In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659 (2d Cir. 2013).....................................................................................................22

Upshaw v. WMB Const., Inc., No. 2:13-CV-76, 2013 WL 4874169 (D. Vt. Sept. 12, 2013) ...........................................22, 25

Viko v. World Vision, Inc., No. 2:08-CV-221, 2009 WL 2230919 (D. Vt. July 24, 2009) .................................................23

Walden v. Fiore, 134 S. Ct. 1115 (2014). ............................................................................................... 4-5, 11-12

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) ................................................................................................ 12-13, 24-25

Constitutional Provisions

VT Const. CH II, § 30 ......................................................................................................................3

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STATEMENT OF THE CASE

The State of Vermont (“Plaintiff”) brought this action on June 5, 2014 against twenty-

nine defendants, each of whom allegedly supplied the Vermont market with gasoline containing

the chemical additive, methyl tertiary-butyl ether (“MTBE”). Plaintiff broadly alleges it has

suffered untold damages caused by releases of gasoline containing MTBE into the groundwaters

of the State. Total Petrochemicals & Refining USA, Inc. (“TPRI”) was named as a defendant

despite the undisputed fact that it has never sold a single gallon of gasoline in the State.

TPRI is a Delaware corporation headquartered in Houston, Texas. TPRI is not currently,

nor has it ever been, qualified to do business in Vermont or registered with the Vermont

Secretary of State. It has never refined, manufactured, or otherwise blended any gasoline

containing MTBE in Vermont, nor has it ever sold, distributed, marketed, or advertised the

product anywhere within its borders. Plaintiff does not dispute these facts. Instead, Plaintiff’s

Complaint simply lumps TPRI with the other twenty-eight defendants vaguely asserting that all

of them have “avail[ed] themselves of the Vermont market . . . to render the exercise of

jurisdiction . . . by the Vermont courts consistent with traditional notions of fair play and

substantial justice.” [P.C. 056, ¶ 20]. Plaintiff’s jurisdictional allegations are patently

insufficient.

Based on the foregoing, TPRI challenged the exercise of personal jurisdiction and filed a

Motion to Dismiss under V.R.C.P. 12(b)(2) on August 21, 2014. [P.C. 118]. Attached to its

motion was an affidavit executed by TPRI’s Senior Manager of Financial Accounting, Kim

Arterburn (“Arterburn Affidavit”) conclusively establishing TPRI’s lack of any jurisdictionally

relevant ties to Vermont and specifically refuting any assertion that TPRI ever supplied the

Vermont market with gasoline containing MTBE. [P.C. 132]. Plaintiff’s Opposition to TPRI’s

Motion to Dismiss failed to dispute a single fact in the Arterburn Affidavit. [P.C. 136].

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Instead, Plaintiff relied on a hastily prepared expert report by Bruce Burke (“Burke

Affidavit”) [P.C. 173] to assert that jurisdiction was nevertheless proper because at some

unspecified point in time, an unknown volume of gasoline containing MTBE—either

manufactured by TPRI in Texas or distributed by TPRI in New Jersey—may have reached

Vermont at the hands of a third party. Despite serious concerns over the reliability of Mr.

Burke’s opinions, TPRI grounded its Reply brief on the law, arguing that even if the court were

to accept Mr. Burke’s speculation as fact, the exercise of personal jurisdiction over TPRI would

still be improper as a matter of law. [P.C. 236]. Foreseeability alone has never been a sufficient

benchmark for the exercise of personal jurisdiction, and recent United States Supreme Court

precedent specifically forbids the exercise of personal jurisdiction based solely on the unilateral

conduct of a third party or mere participation in an alleged national market.

On November 13, 2014, the Superior Court heard oral argument on TPRI’s motion. [P.C.

340]. On January 16, 2015, the Superior Court denied TPRI’s Motion accepting Plaintiff’s

outdated and flawed view of the stream of commerce theory of personal jurisdiction. [P.C. 001].

On February 2, 2015, TPRI moved to reconsider, or in the alternative, for an interlocutory appeal

to this Court. [P.C. 426]. On May 22, 2015, the Superior Court denied TPRI’s motion to

reconsider, but granted its request for interlocutory review of the jurisdictional issue conceding

that it could not state with certainty “that a reasonable appellate judge could not determine that

TPRI lacked sufficient contacts with the State of Vermont, and reverse the conclusion that

personal jurisdiction over TPRI is proper.” [P.C. 466]. This Court accepted review of the appeal

on June 24, 2015. [P.C. 467].

APPELLATE STANDARD OF REVIEW

Whether the Superior Court has personal jurisdiction over TPRI is a question of law.

See, e.g., Godino v. Cleanthes, 163 Vt. 237, 239, 656 A.2d 991, 992 (1995). The Vermont

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Supreme Court reviews the Superior Court’s decision to deny a motion to dismiss for lack of

personal jurisdiction under 12(b)(2) of the Vermont Rules of Civil Procedure de novo. N. Sec.

Ins. Co. v. Mitec Elecs., Ltd., 2008 VT 96, ¶ 29, 106 A.3d 919, cert. denied, 135 S. Ct. 952, 190

L. Ed. 2d 831 (2015)13, 184 Vt. 303, 965 A.2d 447. Appellate jurisdiction is nondeferential and

plenary. Godino, 163 Vt. At 239, 656 A.2d at 993. Factual findings of the Superior Court are

reviewed for clear error. Conley v. Crisafulli, 2010 VT 38, ¶ 3, 188 Vt. 11, 999 A.2d 677 (2010)

(citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). This Court has inherent

authority to reverse the Superior Court’s ruling and render judgment dismissing all claims

against TPRI with prejudice. VT Const. CH II, § 30; V.R.A.P. 5.

SUMMARY OF THE ARGUMENT

Plaintiff’s seventy-five page Complaint makes a single factual allegation specific to

TPRI, namely that it is a Delaware corporation with its principal place of business in Houston,

Texas. [P.C. 053, ¶ 16x]. Without any factual support, Plaintiff lumps TPRI in with the other

twenty-eight defendants and asserts that personal jurisdiction is proper over each of them

“because they either are or at the relevant time were: authorized to do business in Vermont,

registered with the Vermont Secretary of State, transacting sufficient business with sufficient

minimum contacts in Vermont, or otherwise . . . [involved in] the sale, manufacturing,

distribution, and/or processing of petroleum-related products in Vermont . . . .” [P.C. 056, ¶ 20].

Each of the foregoing allegations was specifically rebutted by the testimony offered by

TPRI in the Arterburn Affidavit. Although critical of the Affidavit, Plaintiff never disputed or

contradicted a single jurisdictional fact. Instead, Plaintiff attempted to fabricate jurisdiction by

arguing that TPRI’s product may have found its way to Vermont through the stream of

commerce. The Burke Affidavit, which fails to even explain how gasoline is distributed to

Vermont, nevertheless concludes that “it is more likely than not that [gasoline containing MTBE

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either manufactured or distributed by TPRI] ended up supplying the State of Vermont . . . .”

[P.C. 189].

Setting aside the faulty logic underpinning Mr. Burke’s opinions, the exercise of personal

jurisdiction over TPRI is still improper. Even if the Court were to accept Mr. Burke’s conclusion

that some unknown volume of TPRI’s product did, in fact, reach Vermont, it unquestionably did

so at the hands of a third party. The United States Supreme Court, in a unanimous opinion

issued in Walden v. Fiore, has foreclosed the possibility of resting personal jurisdiction on the

unilateral conduct of a third party. 134 S. Ct. 1115 (2014). The Superior Court failed to address

the implications of the Supreme Court’s opinion in Walden in either its original Order denying

TPRI’s Motion to Dismiss [P.C. 001] or its Order denying TPRI’s Motion to Reconsider [P.C.

464].

TPRI urged the Superior Court to consider a recent decision issued by the Southern

District of New York interpreting Walden to prohibit the exercise of personal jurisdiction in an

MTBE case substantially similar to Plaintiff’s where the defendant’s product reached the forum

State as a result of the unilateral conduct of a third party. In re MTBE Prods. Liab. Litig., Master

File No. 1:00-1898, MDL No. 1358 (SAS), No. M21-88, 2014 WL 1778984 (S.D.N.Y. May 5,

2014). [P.C. 267]. The Superior Court rejected the analogous opinion, arguing that the

defendant there only gained knowledge that the product was destined for the forum State “after

the fact.” (emphasis in original). [P.C. 465]. The Southern District’s opinion, however, clearly

indicates that fact was of no consequence in reaching its decision: “Even if [the defendant] knew

that [third parties] were shipping the MTBE to [the forum], foreseeability alone has never been a

sufficient benchmark for personal jurisdiction under the Due Process Clause.” In re MTBE, 2014

WL 1778984, at *3 (internal quotation marks omitted). Because TPRI’s products could only

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have reached Vermont through the unilateral conduct of a third party, the exercise of personal

jurisdiction is improper pursuant to binding United States Supreme Court precedent in Walden.

The related argument that TPRI should be subject to personal jurisdiction in Vermont due

to its alleged participation in a “national distribution network” is similarly unavailing. [P.C.

465]. The United States Supreme Court grappled with this exact same issue in J. McIntyre

Mach., Ltd. v. Nicastro and rejected the theory that “a producer [can be] subject to jurisdiction

for a products-liability action so long as it knows or reasonably should know that its products are

distributed through a nationwide distribution system that might lead to those products being sold

in any of the fifty states.” 131 S. Ct. 2780, 2793 (2011) (J. Breyer concurring) (emphasis in

original). Although Plaintiff criticizes McIntyre for failing to produce a majority opinion, both

the plurality and the concurrence are clear on this critical point—participation in a national

market alone is an insufficient basis for subjecting a nonresident product manufacturer to

personal jurisdiction.

Even if this Court accepts every inference drawn in Mr. Burke’s expert opinion, the

exercise of personal jurisdiction over TPRI would still be improper. It is undisputed that TPRI

has never participated in the Vermont market for gasoline containing MTBE. Personal

jurisdiction must rest on contacts “the ‘defendant himself’ creates with the forum State.”

Walden, 134 S. Ct. at 1122 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985))

(emphasis in original). Neither the unilateral conduct of a third party nor alleged participation in

a national market can serve to confer specific personal jurisdiction over a nonresident defendant

with no other constitutionally relevant ties to the forum. This Court should reverse the ruling by

the Superior Court and dismiss all claims against TPRI with prejudice.

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Furthermore, there are no other grounds on which the Superior Court’s opinion can be

affirmed. TPRI’s extremely limited contacts with Vermont are insufficient as a matter of law to

establish general jurisdiction. Additionally, Plaintiff’s asserted interest in protecting Vermont’s

groundwater resources does not override the constitutional protections afforded to nonresident

defendants. The exercise of jurisdiction by Vermont courts over TPRI based solely on the

speculative argument that TPRI’s gasoline may have ended up in Vermont would offend

traditional notions of fair play and substantial justice.

ARGUMENT

A. The Legal Standard

On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, Plaintiff bears the

burden of proof. See, e.g., Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.

1994) (“The burden of proving jurisdiction is on the party asserting it.”). To establish

jurisdiction over a nonresident defendant, “the plaintiff must show that the Vermont long arm

statute reaches the defendant, and that jurisdiction over [the defendant] may be maintained

without offending the Due Process Clause of the Fourteenth Amendment of the United States

Constitution.” N. Aircraft, Inc. v. Reed, 154 Vt. 36, 40, 572 A.2d 1382, 1385 (1990).

A court’s exercise of personal jurisdiction over an out-of-state defendant comports with

due process only “if the defendant has certain minimum contacts with the State such that the

maintenance of the suit does not offend traditional notions of fair play and substantial justice.”

Daimler AG v. Bauman, 134 S. Ct. 746, 754 (2014) (citing Int’l Shoe Co. v. Washington, 326

U.S. 310, 316 (1945)) (internal citation and punctuation omitted). The “the foreseeability that is

critical to due process analysis . . . is that the defendant’s conduct and connection with the forum

State are such that he should reasonably anticipate being haled into court there.” Fox v. Fox,

2014 VT 100, ¶ 29, 106 A.3d 919, cert. denied, 135 S. Ct. 952, 190 L. Ed. 2d 831 (2015)

-7-

(quoting Burger King, 471 U.S. at 474). “It is essential to a finding of personal jurisdiction that a

defendant purposefully avails itself of the privilege of conducting activities within the forum

State, thus invoking the benefits and protections of its laws.” Schwartz, 169 Vt. at 293, 733 A.2d

at 79 (internal citation omitted).

To establish specific jurisdiction, the suit must “arise out of or relate to” the defendant’s

contacts with the forum. Burger King, 471 U.S. at 472. General jurisdiction, on the other hand,

requires the defendant’s “affiliations with the State [to be] so continuous and systematic as to

render [it] essentially at home in the forum State.” Daimler, 134 S. Ct. at 761 (citing Goodyear,

131 S. Ct. at 2851); see also Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 223

(2d Cir. 2014) (per curiam), cert. denied, 134 S. Ct. 2888 (2014) (“[G]eneral jurisdiction extends

beyond an entity’s state of incorporation and principal place of business only in the exceptional

case where its contacts with another forum are so substantial as to render it ‘at home’ in that

state.” (citing Daimler, 134 S. Ct. 746)).

To meet this burden, Plaintiff must make a prima facie showing of jurisdiction “based

upon evidence of specific facts set forth in the record.” Schwartz v. Frankenhoff, 169 Vt. 287,

295, 733 A.2d 74, 81 (1999). “Lumping all the defendants together for the purposes of alleging

personal jurisdiction is patently insufficient.” Savage v. Galaxy Media & Mktg. Corp., No. 11

Civ. 6791 (NRB), 2012 WL 2681423, at *6 n.13 (S.D.N.Y. July 5, 2012) (internal punctuation

omitted); see also Schwartz, 169 Vt. at 294, 733 A.2d at 80 (quoting Calder v. Jones, 465 U.S.

783, 790 (1983) for the proposition that “each defendant’s contacts with the forum State must be

assessed individually”). In Vermont, a plaintiff seeking to establish personal jurisdiction is

“require[d] . . . to go beyond the pleadings and make affirmative proof.” Schwartz, 169 Vt. at

-8-

295, 733 A.2d at 81 (internal citation omitted). Plaintiff has made no such individual assessment

and makes no affirmative proof as to TPRI.

B. The Undisputed Jurisdictional Facts Require Dismissal In its Motion to Dismiss, TPRI refuted Plaintiff’s vague jurisdictional allegations with

specific facts conclusively establishing TPRI never participated in the Vermont market for

MTBE or gasoline containing MTBE. See generally [P.C. 132]. Specifically, TPRI established

the following:

(1) TPRI has never refined, manufactured, blended, or otherwise made, marketed, advertised, stored, or sold any product containing MTBE in Vermont [P.C. 132, ¶ 3];

(2) TPRI has never been qualified to do business in Vermont and has never been registered with the Vermont Secretary of State [P.C. 132, ¶ 4];

(3) TPRI has never owned or leased any real estate in Vermont [P.C. 132, ¶ 5];

(4) TPRI has never owned, operated, or leased any gasoline service stations, terminals, underground storage tanks, or any other gasoline distribution or storage facilities located in Vermont [P.C. 133, ¶ 6];

(5) TPRI has never entered into any contractual relationship with any jobber or other distributor for the delivery of MTBE or gasoline containing MTBE to Vermont [P.C. 133, ¶ 7];

(6) TPRI has no knowledge of any third party who delivered MTBE or gasoline containing MTBE to Vermont that TPRI refined, manufactured, or to which it ever held title [P.C. 133, ¶ 7];

(7) TPRI has never employed officers or directors in Vermont [P.C. 133, ¶ 9];

(8) TPRI has never maintained an office, agent for service of process, bank account, phone number, or physical address in Vermont [P.C. 133, ¶¶ 8, 10, 11]; and

(9) The sum total of TPRI’s contacts with Vermont amount to a limited volume of sales of an unrelated product that amount to no more than 0.0013% of TPRI’s total revenue over the course of 2006 through August of 2014. [P.C. 133-134, ¶¶ 12].

Despite Plaintiff’s cursory attempt to discredit the foundation of the Arterburn Affidavit,

Plaintiff never disputed a single fact set forth therein. Because Plaintiff came forward with no

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evidence to dispute any of these critical, jurisdictionally relevant facts, this Court is bound to

consider Plaintiff’s broad-sweeping allegations as having been refuted. When a “defendant

rebuts plaintiffs’ unsupported allegations with direct, highly specific, testimonial evidence

regarding a fact essential to jurisdiction—and plaintiffs do not counter that evidence—the

allegation may be deemed refuted.” In re Stillwater Capital Partners Inc. Litig., 851 F. Supp. 2d

556, 567 (S.D.N.Y. 2012) (quoting Schenker v. Assicurazioni Generaeli S.p.A., Consol., No. 98

Civ. 9186, 2002 WL 1560788, at *3 (S.D.N.Y. July 15, 2002)).

C. TPRI’s Contacts are Insufficient to Support Specific Jurisdiction It is undisputed that TPRI never directed or delivered any MTBE or gasoline containing

MTBE to Vermont.1 Recognizing it cannot base specific jurisdiction on TPRI’s Vermont-based

conduct, Plaintiff attempts to manufacture jurisdiction based on the argument that TPRI placed

its products in the so-called national stream of commerce. Its overbroad theory is legally

deficient and factually unsupported. Plaintiff relies on a multi-layered set of assumptions to

conclude that some unknown volume of TPRI’s product may have been physically transported to

Vermont by the unilateral actions of an unidentified third party.

The Superior Court, in its two opinions, however, reaches factual conclusions that go

beyond Plaintiff’s speculative theory. First, in its January 16, 2015 opinion, the Superior Court

states as follows: “Because TPRI undisputedly manufactured neat MTBE and MTBE gasoline

and sold those products to national distributors who in turn distributed those products for sale . . .

in Vermont, TPRI has sufficient contacts with the State of Vermont for the exercise of personal

jurisdiction . . . .” [P.C. 003]. There is simply no evidence in the record to suggest that any 1 Numerous times in the Superior Court briefing, factual statements (arguments really) are made by Plaintiff which are unsupported by any citation, or which are cited to a source which does not contain the alleged fact. See, e.g. [P.C. 146] (incorrectly citing the affidavit of Mr. Knight for the statement that certain entities “delivered gasoline with MTBE to Vermont” and further alleging that “gasoline radiated out from the New Jersey nucleus to New England, including Vermont” with no foundation whatsoever).

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unidentified “national distributor” to whom TPRI may have sold MTBE or gasoline containing

MTBE then “in turn” delivered those products to Vermont. The Superior Court had no basis in

its January 16, 2015 opinion on which to conclude that TPRI’s products were “undisputedly . . .

distributed . . . for sale in Vermont.”

Second, in its May 22, 2015 opinion, the Superior Court concluded that TPRI “actively

directed its products for distribution and use throughout the entire northeastern United States

gasoline market, including Vermont.” [P.C. 465]. There is no evidence in the record as to such

“active direct[ion]” by TPRI. Plaintiff provided no evidence that TPRI carried out even the most

minimal activity in Vermont, much less some greater plan contemplating the “entire northeastern

United States.” The Superior Court’s conclusion exceeds all reasonable inferences that can be

drawn from the evidence in the record.

Plaintiff’s own expert only speculates as to what might have happened. Mr. Burke never

reaches any conclusion that TPRI’s product was delivered to Vermont, only stating over and

over that the possibility is merely “more likely than not.” See [P.C. 189-190, ¶ 24]; [P.C. 190-

191, ¶¶ 25, 27]. He fails to even describe the route or method of transportation that any of

TPRI’s products could have taken to end up in Vermont. Following Mr. Burke’s logic, a court

would need to overlook that critical flaw in his reasoning and accept each of the following

unsupported presumptions: (1) that at some unknown point in time, (2) an unidentified third

party (3) may have made a unilateral decision (4) to deliver an unspecified volume of MTBE or

gasoline containing MTBE (5) that TPRI either manufactured or distributed outside Vermont (6)

through some unknown method of transportation (7) to an undisclosed location in Vermont. Not

even Mr. Burke can conclusively state that each of the foregoing hypothetical events ever

occurred.

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Based on the foregoing record, the Superior Court’s conclusions that TPRI’s product

“undisputedly” reached Vermont and that TPRI “actively directed its products for distribution

and use throughout the entire northeastern United States gasoline market, including Vermont”

are clearly erroneous. These factual misstatements, while concerning, should have ultimately

been irrelevant to the Superior Court’s analysis because the issue can be resolved as a matter of

law. Due to binding United States Supreme Court precedent, TPRI may not be haled before a

Vermont court based solely on the unilateral conduct of a third party or its participation in an

alleged “national market.”

1. The United States Supreme Court’s Unanimous Opinion in Walden Bars the Exercise of Personal Jurisdiction Based on the Unilateral Conduct of a Third Party

A unanimous United States Supreme Court recently affirmed the longstanding, bedrock

principle that personal jurisdiction must rest on contacts that “the ‘defendant himself’ creates

with the forum State.” Walden, 134 S. Ct. at 1122 (quoting Burger King, 471 U.S. at 475.)

(emphasis in original). In Walden, the Court addressed the question of whether a federal court in

Nevada could exercise personal jurisdiction over a Georgia police officer for his allegedly

tortious conduct in connection with the seizure of plaintiffs’ funds at an Atlanta airport.

Plaintiffs argued jurisdiction was proper because the defendant knew his conduct would result in

foreseeable harm in Nevada, where plaintiffs maintained one of their two primary residences.

The Court found plaintiffs’ argument unconvincing in light of the requirement that personal

jurisdiction analysis “focus[] on the relationship among the defendant the forum and the

litigation.” Id. at 1121 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775 (1984)).

The Court’s opinion clarifies that the conduct of a plaintiff or a third party cannot confer specific

jurisdiction on a nonresident defendant with no relevant connection to the forum state.

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For a State to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum State . . . . Due process limits on the State’s adjudicative authority principally protect the liberty of the nonresident defendant—not the convenience of plaintiffs or third parties. We have consistently rejected attempts to satisfy the defendant-focused “minimum contacts” inquiry by demonstrating contacts between the plaintiff (or third parties) and the forum State. The unilateral activity of another party or a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State to justify an assertion of jurisdiction.

Id. at 1121-22 (emphasis added, internal citations and punctuation omitted).

In the absence of any forum-related contacts, the foreseeable nature of any injury in

Nevada was irrelevant. “[I]t is the defendant’s conduct that must form the necessary connection

with the forum State that is the basis for its jurisdiction over him.” Id. at 1122. “Due process

requires that a defendant be haled into court in a forum State based on his own affiliation with

the State, not based on . . . ‘random, fortuitous, or attenuated’ contacts . . . .” Id. at 1123 (quoting

Burger King, 471 U.S. at 475) (emphasis added). As Plaintiff admitted in failing to contest a

single fact set forth in the Arterburn Affidavit, TPRI has no affiliation with Vermont that bears

any relation to the nature of this suit. The theory that an unidentified third party may have

delivered TPRI’s product to Vermont at some unknown point in time cannot suffice to support

personal jurisdiction in light of the unanimous holding in Walden.

2. United States Supreme Court Jurisprudence on the Stream of Commerce Theory Prohibits the Exercise of Personal Jurisdiction Based Solely on Foreseeability

The United States Supreme Court’s holding in Walden is in keeping with the body of

case law developed in response to personal jurisdiction arguments based on the stream of

commerce theory. Despite Plaintiff’s attempts to mischaracterize the United States Supreme

Court’s holding in World-Wide Volkswagen Corp. v. Woodson, the Court’s opinion clearly

indicates that “foreseeability alone has never been a sufficient benchmark for personal

jurisdiction under the Due Process Clause.” 444 U.S. 286, 296 (1980); see also, Fox, 2014 VT

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100, ¶ 29, 106 A.3d 919, cert. denied, 135 S. Ct. 952, 190 L. Ed. 2d 831 (2015)13, 184 Vt. 303,

965 A.2d 447.29, 106 A.3d 919 (“The Supreme Court has expressly rejected the suggestion that

foreseeability of causing injury in another state is itself a sufficient benchmark for exercising

personal jurisdiction . . . .”). The Court explained further that while foreseeability is not wholly

irrelevant, “the foreseeability that is critical to the due process analysis is not the mere likelihood

that a product will find its way into the forum State.” World-Wide Volkswagen, 444 U.S. at 297

(emphasis added). Setting aside the credibility of the Burke Affidavit, Plaintiff’s conclusion that

personal jurisdiction is proper because “it is more likely than not that some of [TPRI’s product]

ended up supplying the State of Vermont,” is in direct conflict with World-Wide Volkswagen,

which as Plaintiff admits, “remains controlling precedent.” [P.C. 189-190, ¶ 24]; [P.C. 190-191,

¶¶ 25, 27]; [P.C. 154].

Plaintiff seeks to avoid the majority’s conclusion in World-Wide Volkswagen by focusing

on dicta reasoning that jurisdiction may be proper where “the sale of a product . . . is not simply

an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve

directly or indirectly, the market for its product in [the forum] State[.]” World-Wide

Volkswagen, 444 U.S. at 297. Without identifying even one such isolated occurrence, however,

Plaintiff nevertheless argues that TPRI’s purported efforts to serve the national market for

gasoline containing MTBE should render it subject to jurisdiction in Vermont. The Supreme

Court has consistently rejected that argument.

In Asahi Metal Industry Co. v. Superior Court of California., Solano County, the Court

declined to exercise jurisdiction even though the defendant was “fully aware that [its product]

would end up throughout the United States . . . .” 480 U.S. 102, 107 (1987) (plurality opinion).

The plurality reasoned as follows:

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The “substantial connection” between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State. The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed towards the forum State. Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State, for example designing a product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State. But a defendant’s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State.

Id. at 112 (emphasis in original) (internal citations and punctuation omitted). It is undisputed

that TPRI has not engaged in any of the “additional conduct” the Court stated could be relevant

in its jurisdictional analysis. Like Asahi, “[TPRI is not registered to] do business in [Vermont].

It has no office, agents, employees, or property in [Vermont]. It does not advertise or otherwise

solicit business in [Vermont]. It did not create, control, or employ the distribution system that

[may have] brought [its product] to [Vermont]. There is no evidence that [TPRI] designed its

product in anticipation of sales in [Vermont.]” Id. at 112–13; [P.C. 132-133, ¶¶ 3-10]. Thus,

“[o]n the basis of these facts, the exertion of personal jurisdiction . . . [would] exceed[] the limits

of due process.” Asahi, 480 U.S. at 113.

Plaintiff’s Superior Court briefing focused on the concurrence in Asahi, which questioned

whether a showing of “additional conduct” was necessary in light of “Asahi’s regular and

extensive sales of component parts to a manufacturer it knew was making regular sales of the

final product in California.” Id. at 121 (Brennan, J., concurring). Plaintiff here failed to

establish that any of TPRI’s product was ever sold in Vermont, much less that it had the requisite

knowledge contemplated by Justice Brennan’s concurrence. Plaintiff instead argued that because

TPRI participated in the “national market” for MTBE and gasoline containing MTBE, it should

be subject to personal jurisdiction in every state in the northeast, including Vermont. [P.C. 155].

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The absurdity of this position is highlighted by Plaintiff’s contention that jurisdiction should lie

“[e]ven if TPRI could show that none of its own gasoline made it to Vermont.” Id.. Regardless,

any lingering questions left open by the concurrence in Asahi, have been foreclosed by the

Court’s opinion in McIntyre.

In McIntyre, the Court reiterated that a “defendant’s transmission of goods permits the

exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a

general rule, it is not enough that the defendant might have predicted that its goods will reach the

forum State.” McIntyre, 131 S. Ct. at 2788. “It is the defendant’s actions, not his expectations,

that empower a State’s courts to subject him to judgment.” Id. at 2789. Plaintiff’s briefing in the

Superior Court argued that reliance on the plurality opinion in McIntyre is improper. Instead it

argued that “the rule of law announced in McIntyre is set forth in the concurrence.” [P.C. 154].

However, even under the rule of law advocated by the concurrence, the exercise of personal

jurisdiction over TPRI by a Vermont court would still be improper.

Writing for the concurrence, Justice Breyer concluded that the facts in the record did “not

provide contacts between the British [defendant] and the State of New Jersey constitutionally

sufficient to support New Jersey’s assertion of jurisdiction.” McIntyre, 131 S. Ct. at 2791

(Breyer, J., concurring). The facts in McIntyre established that the foreign defendant

manufacturer (1) sold the allegedly defective product to a customer in New Jersey; (2) engaged

the services of a U.S. distributor “as its exclusive distributor for the entire United States;” and (3)

attended trade shows in at least six U.S. cities with the stated intention to reach “anyone

interested in the machine from anywhere in the United States.” Id. at 2791, 2796. Yet the

concurrence still required the existence of “something more,” citing Justice O’Connor’s plurality

opinion in Asahi. Id. at 2792. Critical to Justice Breyer was the fact that the record showed no

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“‘regular course’ of sales in New Jersey” and “no ‘something more’ such as special state-related

design, advertising, advice, marketing, or anything else.” Id. Under those facts, the concurrence

concluded that the exercise of jurisdiction would be improper:

I am not persuaded by the absolute approach adopted by the New Jersey Supreme Court and urged by respondent and his amici. Under that view, a producer is subject to jurisdiction for a products-liability action so long as it knows or reasonably should know that its products are distributed through a nationwide distribution system that might lead to those products being sold in any of the fifty states.

Id. at 2793 (emphasis in original) (internal citations and quotation marks omitted).

Plaintiff’s argument is identical. It is foreclosed by the holding in McIntyre, regardless of

whether this Court looks to the plurality or the concurrence for the applicable standard. The

exercise of personal jurisdiction over TPRI based solely on its alleged participation in a

“nationwide distribution system” is unconstitutional—even under the rule of law advocated by

the McIntyre concurrence.

3. Plaintiff’s Reliance on Outdated Opinions Issued by the MTBE MDL Court in the Southern District of New York is Improper

Plaintiff attempts to disregard controlling United States Supreme Court precedent by

urging the Superior Court to rely on two outdated opinions issued by the Southern District of

New York in the MTBE MDL. See In re MTBE Prods. Liab. Litig., Master File No. 1:00-1898,

MDL 1358 (SAS), M21-88, 2005 WL 106936 (S.D.N.Y. Jan. 18, 2005); In re MTBE Prods.

Liab. Litig., 399 F. Supp. 2d 325 (S.D.N.Y. 2005). Plaintiff argues these cases support its theory

that “deliberate participation in the national market for MTBE” shows “intent to serve the

markets of [Vermont].” [P.C. 157] (citing In re MTBE, 399 F. Supp. 2d at 333). Plaintiff’s

argument ignores the fact that both opinions were decided six years before the Supreme Court’s

decision in McIntyre and nine years before its decision in Walden. Plaintiff’s argument also

ignores a more recent pronouncement from the same New York District Court reaching the

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opposite conclusion and refusing to exercise personal jurisdiction based on a strict stream of

commerce theory in light of McIntyre and Walden. See In re MTBE, 2014 WL 1778984, at *2

[P.C. 267].

In In re MTBE, defendant Tauber Oil Company (“Tauber”) moved to dismiss the

complaint brought by the Commonwealth of Puerto Rico for lack of personal jurisdiction. See

2014 WL 1778984, at *1. Tauber sold neat MTBE to Phillips Petroleum Company (“Phillips”)

in a series of spot sales. Phillips independently arranged for the delivery of certain batches to its

blending facility in Puerto Rico. Id. Apart from Phillips’ conduct, Tauber maintained no

connection to Puerto Rico. Id. at *1, *3. “Tauber never manufactured, marketed, traded, stored,

sold, solicited, advertised, or otherwise handled finished gasoline, gasoline containing MTBE or

neat MTBE in Puerto Rico. Tauber was not involved in any decision by any Phillips entity to

use or ship MTBE to Puerto Rico.” Id. at *1. However, plaintiff contended that Tauber was

aware that its MTBE was being transported to Puerto Rico for blending and further distribution.

Id. at *3.

In its Motion to Dismiss, Tauber pointed to the same controlling United States Supreme

Court precedent at issue here. It urged that under the holdings in Walden and McIntyre, the

exercise of personal jurisdiction by the Commonwealth of Puerto Rico would be improper. See

Puerto Rico v. Shell Oil Co., No. 1:07-cv-10470-SAS, at Dkt. No. 365, at 13-24 (S.D.N.Y. filed

June 12, 2007) [P.C. 275]. The court agreed, finding the Commonwealth’s argument regarding

the foreseeable nature of deliveries to Puerto Rico unconvincing:

Even if Tauber knew that the Phillips entities were shipping the MTBE to Puerto Rico, foreseeability alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause. Instead, due process requires that a defendant be haled into court in a forum State based on his own affiliation with the State, not based on the random, fortuitous, or attenuated contacts he makes by targeting other persons affiliated with the State. Here Tauber never

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manufactured, marketed, delivered, or sold its MTBE in Puerto Rico. Nor did it solicit or advertise in Puerto Rico. Instead, Tauber merely sold MTBE to the Oklahoma-based Phillips entities in a series of isolated spot sales. The independent decision of the Phillips entities to ship the MTBE to Puerto Rico does not establish jurisdiction over Tauber.

In re MTBE, 2014 WL 1778984, at *3. (emphasis in original) (internal citations and quotation

marks omitted). The jurisdictionally relevant facts are directly analogous to the present case.

The only material difference is the fact that Plaintiff here has no evidence that any of TPRI’s

product ever actually reached Vermont. Otherwise, the facts are identical and this Court’s

analysis should end in the same result.

The Superior Court’s cursory attempt to distinguish the Southern District’s opinion in the

Puerto Rico matter is unsupported by the record. The Superior Court writes in conclusory

fashion, “This case is . . . distinguishable. Here TPRI directed its products through a national

distribution network from Texas to New Jersey and from New Jersey to the northeastern United

States. It did not engage in individual, stand-alone sales of specified quantities ‘on the spot’ with

no reason to know the ultimate destination of the product.” [P.C. 465]. The Superior Court cites

to no evidence to support any of these bald assertions. In fact, the evidence submitted by

Plaintiff in its Opposition is directly contrary to the court’s conclusions because it details TPRI’s

spot sales. For example, Exhibit C to Plaintiff’s Opposition includes an affidavit TPRI submitted

in another MTBE case detailing every individual, spot sale of gasoline containing MTBE that

TPRI made to third parties via the Colonial Pipeline. [P.C. 202]. The third party recipient, the

precise quantity of the product being sold, and the title transfer point are all listed in detail. Id.

The overwhelming majority of these sales were consummated in Hebert, Texas. Id. In fact, less

than 5% of the gasoline TPRI manufactured in Texas and sold to third parties via the Colonial

Pipeline was even delivered to New Jersey, and there is no evidence that the two third parties

that received TPRI’s product in New Jersey distributed any portion of it to Vermont. Id.

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Plaintiff’s evidence also includes a similar affidavit detailing each and every individual,

spot sale of gasoline containing MTBE that TPRI made to third parties from its operations in

New Jersey. [P.C. 207]. Again the individual third parties, quantities, and methods of

transportation are all set forth in detail. Id. The majority of these sales were made to third

parties via barge—the same method of transportation at issue in the Puerto Rico opinion. Like

Tauber, TPRI had no control over the ultimate destination of any of those barge shipments, and

furthermore, there is no evidence that any of those shipments were even delivered to terminals

that could conceivably service the land-locked State of Vermont. The Superior Court’s

mischaracterization of TPRI’s conduct as an effort to serve “the entire northeastern United

States” is clearly not supported by the evidence in the record. Like Tauber, TPRI made

individual, spot sales of gasoline containing MTBE to third parties who controlled the ultimate

destination of the product. Even if there were any evidence that some portion of that product

was actually delivered to Vermont, it would only have occurred solely at the discretion of a third

party—conduct which is not sufficient to confer jurisdiction over TPRI.

4. Vermont Precedent is in Accord with the United States Supreme Court

In Emery v. Shell Oil Company, the Washington Unit of the Vermont Superior Court was

presented with the same unconvincing argument being asserted by Plaintiff here. No. 80-2-09

Wncv (Vt. Super. Ct. Jan. 14, 2011) (unpublished) [P.C. 306]. The Emery plaintiffs alleged Mr.

Emery suffered injury due to his exposure to benzene-containing products that were

manufactured and distributed to Vermont by a number of defendants, including Cleveland

Lithichrome (“Cleveland”). [P.C. 306]. Cleveland, in turn, sought indemnification from Barton

Solvents based on the theory that any injury suffered by Mr. Emery resulted from exposure to

benzene-containing components that were manufactured by Barton. Barton, an out-of-state

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defendant with no presence in Vermont, filed a motion to dismiss for lack of personal

jurisdiction. [P.C. 307].

Cleveland’s argument in support of personal jurisdiction rested on the allegation that

“Barton Solvents knew that its product was being incorporated into Cleveland Lithichrome

products that would be distributed nationally.” [P.C. 311]. After a thorough discussion of the

controlling Supreme Court precedent in World-Wide Volkswagen and the divided opinion of the

Court in Asahi, the Vermont court summarily rejected Cleveland’s argument:

This argument has several defects. First, Cleveland’s argument reflects an even broader stream-of-commerce theory than even Justice Brennan endorsed in [his concurrence] in Asahi. Justice Brennan’s analysis was not that Asahi should be subject to the jurisdiction of every state because it was aware that its products were being marketed nationally. Asahi specifically knew that the stream of commerce was taking its products to California routinely, not incidentally. Contacts thus were sufficient in California [according to the standard set forth in his concurrence]. The United States Supreme Court has never endorsed a stream of commerce theory as broad as that apparently advocated here by Cleveland.

Id. The opinion was issued just a few days after McIntyre was argued before the Supreme Court,

foreshadowing the rule of law ultimately announced a few months later in the McIntyre

concurrence confirming that a manufacturer’s mere knowledge that “its products are distributed

through a nationwide distribution system that might lead to those products being sold” in the

forum state is insufficient to establish personal jurisdiction. McIntyre, 131 S. Ct. at 2793

(Breyer, J., concurring) (emphasis in original).

The Superior Court’s opinion also relies heavily on its interpretation of the Vermont

Supreme Court’s nearly twenty-year-old ruling in Dall v. Kaylor, 163 Vt. 274, 658 A.2d 78

(1995). The court cited to Dall in reaching its conclusion that “where a defendant intentionally

acts to place its product into a national distribution system in order to advance its commercial

interests, ‘it should reasonably anticipate being sued in Vermont if a dispute arises from these

activities.’” [P.C. 002] (citing Dall, 163 Vt. at 276, 658 A.2d at 79-80). Not only is this

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statement at odds with the more recently decided precedent outlined above confirming that

participation in a national market alone is insufficient to establish personal jurisdiction, it is an

unreasonably broad expansion of the Vermont Supreme Court’s holding in Dall.

In Dall, the defendant’s product did not reach the forum State through a national

distribution network, nor through the hands of a third party. The defendant advertised its

products for sale in a nationally circulated publication that reached potential customers in

Vermont “over a hundred times.” Dall, 163 Vt. at 275, 658 A.2d at 79. Upon viewing one such

advertisement, the plaintiff contacted the defendant directly and entered into a contract to

purchase one of the advertised Hanoverian horses. Id. The defendant arranged for delivery of

the horse to Vermont, whereupon the plaintiff discovered that it suffered from a congenital and

chronic bone disease and subsequently filed suit. Id.

The product in question reached Vermont through the direct and purposeful conduct of

the defendant, making the exercise of personal jurisdiction proper. The court reasoned that it did

not offend the traditional notions of fair play and substantial justice to subject the defendant to

personal jurisdiction in Vermont because the defendant not only advertised its products for sale

in the state but also because it “‘creat[ed] continuing relationships and obligations’ with [its]

citizens.” Id., 162 Vt. at 277, 658 A.2d at 80 (citing Burger King, 471 U.S. at 473). TPRI never

advertised its products for sale in Vermont, nor did it ever create any “continuing relationships

[or] obligations” with its citizens. See, e.g., [P.C. 132]. In fact, there is no evidence that TPRI’s

product ever made it to Vermont at all. None of the facts critical to the holding in Dall are

present here, making the Superior Court’s reliance on it to support its ruling questionable.

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D. Vermont Courts Cannot Exercise General Jurisdiction Over TPRI Based on its Extremely Limited Contacts with Vermont

The Superior Court’s denial of TPRI’s Motion to Dismiss was based on a finding of

specific jurisdiction. [P.C. 003]. That error is addressed in the argument sections above.

Additionally, Plaintiff failed to meet its burden in the Superior Court to establish any basis for

general jurisdiction over TPRI. To have done so, it would have needed to produce evidence of

“continuous and systematic” contacts with Vermont. Based on the facts in the record, TPRI’s de

minimus contacts with Vermont are clearly insufficient to establish general jurisdiction. The

Superior Court failed to give credence to any of Plaintiff’s general jurisdiction arguments, and

there is no mention of general jurisdiction in its opinions.

The general jurisdiction analysis is a stringent test allowing jurisdiction to “extend[]

beyond an entity’s state of incorporation and principal place of business only in the exceptional

case where its contacts with another forum are so substantial as to render it ‘at home’ in that

state.”2 Sonera Holding, 750 F.3d at 223 (citing Daimler, 134 S. Ct. 746 (emphasis added)); see

also Upshaw v. WMB Const., Inc., No. 2:13-CV-76, 2013 WL 4874169, at *3 (D. Vt. Sept. 12,

2013) (“Because the contacts that establish general jurisdiction are unrelated to the events giving

rise to the lawsuit, courts impose a ‘more stringent’ version of the minimum contacts test for

general jurisdiction than for specific jurisdiction.” (citing In re Terrorist Attacks on Sept. 11,

2001, 714 F.3d 659, 674 (2d Cir. 2013))). Indeed, the United States Supreme Court recently

made “clear that even a company’s ‘engage[ment] in a substantial, continuous, and systematic

2 In determining whether a court has general jurisdiction, it will “examine a defendant’s contacts with the forum state over a period that is reasonable under the circumstances—up to and including the date the suit was filed.” Porina v. Marward Shipping Co., Ltd., 521 F.3d 122, 128 (2d Cir. 2008) (quoting Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 569 (2d Cir. 1996)). The number of years a court will consider is highly fact-intensive and can range from approximately three to seven years. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 409-411 (1984) (considering contacts going back six years); Metro. Life, 84 F.3d at 569 (considering contacts going back six years); Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1329-31 (9th Cir. 1984) (considering contacts going back three years).

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course of business is alone insufficient to render it at home in a forum[.]” Sonera Holding, 750

F.3d at 226 (quoting Daimler, 134 S. Ct. at 761).

TPRI’s contacts with Vermont do not come close to the “systematic and continuous”

contacts required to render it “at home” in the State. See Daimler, 134 S. Ct. at 761-62; see also

Sonera Holding, 750 F.3d at 226. TPRI’s contacts with Vermont consist of extremely limited

sales and the temporary storage of polypropylene in an in-transit rail car at the end of 2012.

[P.C. 133-134]. Even sizable sales into a state do not establish general jurisdiction, let alone de

minimis sales such as these. Daimler, 134 S. Ct. at 761-62 (finding that asserting general

jurisdiction in every state in which a defendant’s “sales are sizable” would be an “exorbitant

exercise[]” that “would scarcely permit out-of-state defendants ‘to structure their primary

conduct with some minimum assurance as to where that conduct will and will not render them

liable to suit’” (citing Burger King, 471 U.S. at 472)); Johnston v. Multidata Sys. Int’l Corp., 523

F.3d 602, 612 (5th Cir. 2008) (finding sales to the forum State for “four out of five years [that]

accounted for 1.7%, 0.5%, 1.1%, and 2.5%” of the defendant’s global sales did not amount to

“substantial, systematic, and continuous contacts”); Viko v. World Vision, Inc., No. 2:08-CV-

221, 2009 WL 2230919, at *16 (D. Vt. July 24, 2009) (“This Court and this Circuit have found

mere sales . . . to be an insufficient basis for general jurisdiction.” (citations omitted));

Dearwater v. Bond Mfg. Co., No. 1:06-CV-154, 2007 WL 2745321, at *1 (D.Vt. Sept. 19, 2007)

(finding defendant’s sales to customers in Vermont over a seven year period representing

between 2.3% and 0.03% of its yearly total sales did not establish general jurisdiction). Plaintiff

cited no authority in the Superior Court that would support general jurisdiction based on TPRI’s

limited sales and temporary storage of polypropylene.

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Consequently, because TPRI’s contacts with Vermont do not approach the “continuous

and systematic” contacts required to render a nonresident defendant “at home” in the forum,

TPRI is not subject to general jurisdiction in Vermont. See Daimler, 134 S. Ct. at 761-62;

Helicopteros, 466 U.S. at 416-17 (finding general jurisdiction did not exist even where defendant

purchased significant equipment and services from the forum State, sent its personnel to train in

the forum State, and sent its CEO to negotiate in the forum State). TPRI’s contacts with

Vermont are precisely the type of “random, fortuitous, [and] attenuated” contacts that are

insufficient to establish general personal jurisdiction. See Burger King, 471 U.S. at 475.

E. Asserting Jurisdiction Over TPRI Would Violate Traditional Notions of Fair Play and Substantial Justice

Because TPRI’s contacts with Vermont do not satisfy the minimum contacts requirement

for either specific or general jurisdiction, a court need not consider whether the exercise of

personal jurisdiction would nevertheless be reasonable. See, e.g., Porina, 521 F.3d at 129;

Metro. Life, 84 F.3d at 568 (“[I]f the constitutionally necessary first-tier minimum [contacts are]

lacking, the inquiry ends.”); Dearwater, 2007 WL 2745321, at *8. However, even if Plaintiff

had established the requisite minimum contacts, TPRI’s Motion should have been granted

because asserting jurisdiction over it would offend traditional notions of fair play and substantial

justice. See Asahi, 480 U.S. at 113-14.

Courts consider the following factors when determining the reasonableness of the

exercise of jurisdiction: (i) “the burden on the defendant;” (ii) “the interests of the forum State;”

(iii) “the plaintiff’s interest in obtaining relief;” (iv) “the interstate judicial system’s interest in

obtaining the most efficient resolution of controversies;” and (v) “the shared interest of the

several States in furthering fundamental substantive social policies.” Id. at 113 (quoting World-

Wide Volkswagen, 444 U.S. at 292). In this case, TPRI would be significantly and unduly

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burdened by being forced to litigate in Vermont. It has no presence in Vermont, and all of its

officers and most of its employees are located almost 2,000 miles away in Texas. Thus, the

exercise of personal jurisdiction over TPRI would be improper:

[T]he Due Process Clause does not contemplate that a state may make binding a judgment in personam against [a] corporate defendant with which the State has no contacts, ties, or relations. Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment.

World-Wide Volkswagen, 444 U.S. at 294 (internal citations and quotations omitted). Moreover,

Vermont’s interest in resolving this dispute will not be prejudiced by the dismissal of TPRI

because TPRI never refined, manufactured, distributed, marketed, or sold either MTBE or

gasoline containing MTBE in Vermont, and therefore has no connection to the allegations

underlying Plaintiff’s causes of action. Accordingly, asserting jurisdiction over TPRI under the

circumstances of this case would be unreasonable and a violation of TPRI’s due process rights.

See Asahi, 480 U.S. at 115-16; Upshaw, 2013 WL 4874169, at *4.

In the Superior Court, Plaintiff argued that the exercise of jurisdiction over TPRI was fair

and just, principally because of Plaintiff’s interest in bringing this suit on behalf of the public to

prevent pollution of its groundwater resources. [P.C. 163]. While such an interest is arguably

legitimate, it cannot overcome TPRI’s lack of minimum contacts with Vermont. Courts have

rejected similar arguments made by other states asserting a strong desire to protect their citizens.

In Asahi, the United States Supreme Court rejected the Supreme Court of California’s argument

that “the State had an interest in ‘protecting its customers by ensuring that foreign manufacturers

comply with the state’s safety standards.’” 480 U.S. at 114. In McIntyre, the Supreme Court

similarly disregarded “the State’s ‘strong interest’ in protecting its citizens from defective

-26-

products.” 131 S. Ct. at 2791 (“That interest is doubtless strong, but the Constitution commands

restraint before discarding liberty in the name of expediency.”). TPRI’s lack of a meaningful

connection Vermont cannot be cured solely by Plaintiff’s interests, however strong it may allege

them to be.3

CONCLUSION

Based on the foregoing, the Superior Court erred in denying TPRI’s Motion to Dismiss,

because Plaintiff did not meet its burden of establishing personal jurisdiction. Additionally, the

factual finding by the Superior Court, that TPRI’s product was “undisputedly” delivered to

Vermont, is clearly erroneous. TPRI therefore respectfully requests that this Court reverse the

ruling of the Superior Court and render judgment dismissing Plaintiff’s Complaint against TPRI

with prejudice.

3 The primary case cited by Plaintiff in support of its argument that the exercise of jurisdiction over TPRI would be “fair and just” bears no resemblance to the facts of this case. In State of Vermont v. MPHJ Tech. Inv., LLC, defendant sent “‘hundreds or thousands’ of letters to businesses in Vermont alleging potential patent infringement,” and, in fact, “threatening litigation.” No. 282-5-13 Wncv, at 2 (Vt. Super. Ct. August 28, 2014) [P.C. 228]. The Vermont Superior Court found personal jurisdiction particularly appropriate in that case because the letters themselves were alleged to be “violations of the law, purposefully directed at Vermont residents.” [P.C. 233]. No such facts are present in the underlying case.

Dated: August 10, 2015

Respectfully submitted,

RYAN SMlTH & CARBINE, LTD.

Harry R. an Eric J. Morgan 98 Merchants Row/P.O. Box 310 Rutland, Vermont 05702-0310 Tel. (802) 786-1044 Fax (802) 786-1100 hIT@rsclaw.com ejm@rsclaw.com

BRACEWELL & GIULIANI LLP

M. Coy Connel y - admitted p o hac vice Amy E. Parker - admitted pro ac vice 711 Louisiana Street, Suite 2300 Houston, Texas 77002-2770 Tel. (713) 221-1335 Fax (713) 221-1212 coy.connelly@bgllp.com amv.parker@bgllp.com

Counsel for Defendant-Appellant TOT AL PETROCHEMICALS & REFINING USA, INC.

-27-

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitations of V.R.A.P. 32(a)(7)(A)(i)

because this brief consists of 8,692 words, excluding the parts of the brief exempted by V .R.A.P.

32(a)(7)(C). In preparation of this brief, the undersigned relied upon the word count function of

Microsoft Word 2010.

2. This brief complies with the typeface requirements of V .R.A.P. 32(a)(5) and the type

style requirements ofV.R.A.P. 32(a)(6) because this brief has been prepared in a proportionally

spaced typeface using Microsoft Word 2010 in 12-point Times New Roman font, with 11-point

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3. A virus check using Microsoft System Center Endpoint Protection was performed on

the PDF file of this brief, and no viruses were found.

4939775

-28-

IN THE SUPREME COURT OF THE STATE OF VERMONT

VERMONT SUPREME COURT DOCKET NUMBER 2015-204

STATE OF VERMONT,

Plaintiff-Appellee

vs.

ATLANTIC RICHFIELD COMPANY, et al.,

Defendants

TOTAL PETROCHEMICALS & REFINING USA, INC.,

Defendant-Appellant

APPEAL FROM

VERMONT SUPERIOR COURT WASHINGTON UNIT, CIVIL DIVISION

DOCKET NUMBER 340-6-14 Wncv

APPELLANT’S PRINTED CASE

Harry R. Ryan Eric J. Morgan

RYAN SMITH & CARBINE, LTD. 98 Merchants Row/P.O. Box 310

Rutland, Vermont 05702-0310 Tel. (802) 786-1044 / Fax (802) 786-1100

hrr@rsclaw.com / ejm@rsclaw.com

M. Coy Connelly – admitted pro hac vice Amy E. Parker – admitted pro hac vice

BRACEWELL & GIULIANI LLP 711 Louisiana Street, Suite 2300

Houston, Texas 77002-2770 Tel. (713) 221-1335 / Fax (713) 221-1212

coy.connelly@bgllp.com / amy.parker@bgllp.com

Counsel for Defendant-Appellant TOTAL PETROCHEMICALS & REFINING USA, INC.

-i-

TABLE OF CONTENTS

Page

01/16/2015 Decision – Defendant Total Petrochemicals & Refining USA, Inc.’s Motion to Dismiss for Lack of Personal Jurisdiction ................................001

07/24/2015 Docket Entries ......................................................................................................004

06/05/2014 Plaintiff’s Original Complaint .............................................................................042

08/21/2014 Total Petrochemicals & Refining USA, Inc.’s Motion to Dismiss for Lack of Personal Jurisdiction .........................................................................118

Exhibit 1 Affidavit of Kim Arterburn ..........................................................132

09/19/2014 State of Vermont’s Opposition to TPRI’s Motion to Dismiss .............................136

Exhibit A Affidavit of Bruce F. Burke in Support of Plaintiff State of Vermont’s Opposition to Defendant’s Total Petrochemicals & Refining USA, Inc.’s Motion to Dismiss for Lack of Personal Jurisdition .....................................173

Exhibit C Affidavit of Kim Arterburn ..........................................................202

Exhibit C Affidavit of Tom Knight ..............................................................207

10/03/2014 Total Petrochemicals & Refining USA, Inc.’s Reply in Support of Its Motion to Dismiss for Lack of Personal Jurisdiction .....................................236

Exhibit 1 In Re MTBE Prods. Liab. Litig., Master File No. 1:00-1898, MDL No. 1358 (SAS), No. M21-88, 2014 WL 1778984 (S.D.N.Y. May 5, 2014) ...............................267

Exhibit 2 Memorandum of Law in Support of Defendant Tauber Oil Company’s Motion to Dismiss for Lack of Personal Jurisdiction ................................................................275

Exhibit 3 Emery v. Shell Oil Company, No. 80-2-09 Wncv (Vt. Super. Ct. Jan. 14, 2011) ......................................................306

11/13/2014 Motions Hearing Before the Honorables Mary Miles Teachout and Brian Grearson (Telephonic) Judges of the Superior Court ................................340

02/02/2015 Total Petrochemicals & Refining USA, Inc.’s Motion to Reconsider, or in the Alternative for Premission to Appeal the Court’s Order on Its Motion to Dismiss for Lack of Personal Jurisdiction ...........................................................................................................426

-ii-

Page

02/13/2015 State of Vermont’s Opposition to Defendant Total Petrochemicals & Refining USA, Inc.’s Motion to Reconsider, or in the Alternative for Permission to Appeal the Court’s Order on Its Motion to Dismiss Plaintiff’s Original Complaint for Lack of Personal Jurisdiction ............................................................................................438

02/27/2015 Total Petrochemicals & Refining USA, Inc.’s Reply in Support of Its Motion to Reconsider, or in the Alternative for Permission to Appeal the Court’s Order on Its Motion to Dismiss for Lack of Personal Jurisdiction ............................................................................................456

05/22/2015 Decision – Defendant Total Petrochemicals & Refining USA, Inc.’s Motion to Reconsider or in the Alternative for Permission to Take and Interlocutory Appeal ............................................................................464

06/24/2015 Vermont Supreme Court Entry Order ..................................................................467

SUPERIOR COURT Washington Unit

STATE OF VERMONT, Plaintiff

v.

i STATE OF VERMONT

ATLANTIC RICHFIELD COMPANY, et al. Defendants.

DECISION

CIVIL DIVISION Docket No. 340-6-14 Wncv

Defendant Total Petrochemicals & Refining USA, Inc.'s Motion to Dismiss for lack of Personal Jurisdiction

This matter is before the Court on a Motion to Dismiss for lack of personal jurisdiction filed August 21, 2014 by defendant Total Petrochemicals & Refining USA, Inc. ("TPRI"). Plaintiff State of Vermont opposes the motion. Oral argument was held on the motion on November 13, 2014. At oral argument TPRI was represented by Attorney Amy Parker. The State of Vermont was represented by Assistant Attorney General Gavin J. Boyles.

Background

This action relates to contamination of Vermont waters by methyl tertiary butyl ether ("MTBE"), a gasoline additive. The State has filed this action against 29 defendants, all of whom allegedly participated in the promotion, marketing, distribution, and/or sale of gasoline containing MTBE in Vermont. Due to its chemical characteristics, MTBE spreads farther through groundwater and is more difficult to remediate than other gasoline constituents. The State seeks remediation and recovery costs under a number of legal theories, including violation of Vermont groundwater and natural resource protection statutes, negligence, strict liability, public and private nuisance, trespass, and civil conspiracy.

In the present motion TPRI seeks to dismiss the state's claims against it for lack of personal jurisdiction. A pretrial motion to dismiss for lack of personal jurisdiction may be decided on the basis of affidavits alone. Godino v. Cleanthes, 163 Vt. 237, 239 (1995). The court must determine whether, on the basis of the affidavits, the party opposing the motion has made a "prima facie showing of jurisdiction, or, in other words, [has demonstrated] facts which would support a finding of jurisdiction." Id Both parties have submitted affidavits, establishing the following facts.

TPRI has never refined gasoline, manufactured MTBE, blended MTBE into gasoline, or itself sold, stored, marketed, or advertised gasoline containing MTBE or neat MTBE in Vermont. TPRI also avers that it has no awareness of a third party delivering MTBE gasoline or neat MTBE to Vermont that TPRI refined or manufactured.

1

P.C. 001

TPRI has, however, sold MTBE gasoline and neat MTBE to national distributors. Prior to sale, TPRI refined the gasoline in Texas before shipping it via the Colonial Pipeline to New Jersey, where it is stored and subsequently distributed to the entire northeastern United States, including Vermont. As part of this national gasoline distribution system, gasoline from various refineries is comingled making it practically impossible to determine at the point of distribution or sale what refinery produced any given gallon of gasoline. TPRI sold millions of barrels of gasoline containing MTBE to major national distributors that distribute gasoline in Vermont. One could not say with certainty whether the exact MTBE or MTBE gasoline manufactured by TPRI was sold in Vermont.

Analysis

Under the Vermont long arm statute, 12 V.S.A. § 913(b), the court may "assert jurisdiction over individual defendants to the full extent permitted by the Due Process Clause." Northern Aircraft, Inc. v. Reed, 154 Vt. 36, 40 (1990). "In order to invoke personal jurisdiction over an individual defendant, the defendant must have 'certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice."' Id. at 41 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Applying the minimum contacts test, jurisdiction over a nomesident defendant is improper if it is based solely on "fortuitous, attenuated or random contacts." Id. at 41-42. The key determination is whether a defendant "purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253 (1958).

The parties dispute under what circumstances a plaintiff can establish a defendant's purposeful availment through the so called "stream of commerce" doctrine. "[The stream of commerce] refers to the movement of goods from manufacture through distributors to consumers .... " J Mcintyre Machinery, Ltd. V. Nicastro,_ U.S._, 131 S.Ct. 2780, 2788 (2011) (Kennedy, J.). "[A] defendant may in an appropriate case be subject to jurisdiction without entering the forum-itself an unexceptional proposition-as where manufacturers or distributors 'seek to serve' a given State's market." Id. (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298 (1980). It is not sufficient, however, that the product causing injury foreseeably made its way to the forum state. World-Wide Volkswagen Corp., 444 U.S. at 295-97. "[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." Id. at 297. Thus, "if the sale of a product of a manufacturer or distributor ... is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not umeasonable to subject it to suit in one of those States .... " Id. Therefore, where a defendant intentionally acts to place its product into a national distribution system in order to advance its commercial interest, it "should reasonably anticipate being sued in Vermont if a dispute arises from these activities." Dall v. Kaylor, 163 Vt. 274, 276 (1995).

The Federal District Court for the Southern District of New York, in a consolidated multi-district litigation involving numerous alleged injuries caused by MTBE, held that a defendant manufacturer ofMTBE gasoline, Lyondell-Citgo Refining LP ("LCR"), "[was] subject to personal jurisdiction in each of the forum states because it supp lie[ d] MTBE-

2

P.C. 002

containing gasoline to the national market." In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation, 399 F.Supp.2d 325, 332 (S.D.N.Y., 2005). The court rejected LCR's argument that personal jurisdiction was lacking because it only sold MTBE gasoline to one buyer as "that buyer [was] Citgo, whose nationwide distribution network reach[ ed] every one of the relevant states." Id. The court held that "[b ]y selling large volumes of MTBE­containing gasoline to a nationwide distributor, LCR expected, or reasonably should have expected, its product to reach all of the states in the nation. Thus, LCR purposefully availed itself of the privilege of doing business in the forum states, such that it could reasonably foresee being haled into court in those states." Id.

TPRI argues that because it does not have any direct contacts with Vermont and all of the contacts alleged by the State between TPRI and Vermont are through third parties, this court does not have personal jurisdiction over TPRI. Much like LCR in the multi-district MTBE litigation, however, TPRI took affirmative action when it chose to sell neat MTBE and MTBE blended gasoline through the national distribution scheme and specifically the Colonial Pipeline and its operations within New Jersey. TPRI argues that although it sold millions of gallons of MTBE containing gasoline into the northeastern United States gasoline market, it cannot reasonably expect to be haled into court in any specific jurisdiction because it did not distribute that gasoline itself and remained ignorant of where its gasoline was distributed. This, however, is contrary to the U.S. Supreme Court's reasoning in World-Wide Volkswagen and the Vermont Supreme Court's decision in Dale.

Conclusion

Because TPRI undisputedly manufactured neat MTBE and MTBE gasoline and sold those products to national distributors who in turn distributed those products for sale in the northeast market, including in Vermont, TPRI has sufficient contacts with the State of Vermont for the exercise of personal jurisdiction over it with respect to alleged injuries resulting from the sale of MTBE gasoline in Vermont.

Order

For the foregoing reasons, TPRI's motion to dismiss is denied.

Dated at Montpelier, Vermont this 15th day of January 2015.

3

Mary :re1iles Teachout Superior Judge

P.C. 003

Current Case Docket Information

Court record: 64470

Vermont Superior Court Washington Civil Division _______________________________________________________________________________ | | | Docket No. 340-6-14 Wncv State of Vermont vs. Atlantic Richfield | |______________________________________________________________________________| Case Type: Last judge: Mary Miles Teachout Case Track: Not set Recused: None Case Status: Inactive - Appeal Pending Court/Jury: Jury Trial Next Hearing: ================================================================================ PARTIES No. Role Litigant Name Attorney Name Telephone -------------------------------------------------------------------------------- p# 1 plf State of Vermont Kline, Scot L. 828-0033 p# 2 def Atlantic Richfield Company Stern, Robin L. 802-257-7244 p# 3 def BP Products North America Inc.Stern, Robin L. 802-257-7244 p# 4 def Chevron U.S.A.Inc. Fawley, R. Bradford 802-258-3070 p# 5 def CITGO Petroleum Corporation Lynn, Pietro J. 802-860-1500 p# 6 def CITG Refining and Chemicals, CLynn, Pietro J. 802-860-1500 p# 7 def Coastal Eagle Point Oil, CompaRyan, Harry R. III 786-1000 p# 8 def ConocoPhillips Company Vitt, Geoffrey J. 649-5700 p# 9 def El Paso Merchant Energy-PetrolRyan, Harry R. III 786-1000 p# 10 def Equilon Enterprises LLC Byrne, Matthew B. p# 11 def Exxon Mobil Corporation Berger, Ritchie E. 864-5751 p# 12 def ExxonMobil Oil Corporation Berger, Ritchie E. 864-5751 p# 13 def Hess Corporation Ryan, Harry R. III 786-1000 p# 14 def Highlands Fuel Delivery, LLC Sartore, John Thornton 658-2311 p# 15 def Irving Oil Limited Sartore, John Thornton 658-2311 p# 16 def Mobil Corporation Berger, Ritchie E. 864-5751 p# 17 def Motiva Enerprises LLC Byrne, Matthew B. p# 18 def PDV Midwest Refining, LLC Lynn, Pietro J. 802-860-1500 p# 19 def Shell Oil Company Byrne, Matthew B. p# 20 def Shell Oil Products Company, LLByrne, Matthew B. p# 21 def Shell Petroleum Inc. Byrne, Matthew B. p# 22 def Shell Trading(US) Company Byrne, Matthew B. p# 23 def Sunoco, Inc. (R&M) Ryan, Harry R. III 786-1000 p# 24 def TMR Company Byrne, Matthew B. p# 25 def Total Petrochemicals &, RefiniRyan, Harry R. III 786-1000 p# 26 def TRMI-H LLC Fawley, R. Bradford 802-258-3070 p# 27 def Ultramar Energy, Inc. Nolan, Craig S. p# 28 def Valero Energy Corporation Nolan, Craig S. p# 29 def Valero Marketing and Supply, CNolan, Craig S. p# 30 def Valero Refining-Texas, L.P. Nolan, Craig S. p# 31 cp1 Co-counsel Boyles, Gavin p# 32 cp1 Co-counsel McDougall, Robert F. 828-3186 p# 33 cp5 Co-counsel Weimer, Gregory A. 802-860-1500 p# 34 cp10 Co-counsel Hammond, Heather Rider p# 35 cp17 Co-counsel Hammond, Heather Rider p# 36 cp19 Co-counsel Hammond, Heather Rider p# 37 cp20 Co-counsel Hammond, Heather Rider p# 38 cp21 Co-counsel Hammond, Heather Rider p# 39 cp22 Co-counsel Hammond, Heather Rider

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P.C. 004

p# 40 cp24 Co-counsel Hammond, Heather Rider p# 41 cp23 Co-counsel Morgan, Eric J. 802-786-1040 p# 42 cp13 Co-counsel Morgan, Eric J. 802-786-1040 p# 43 cp7 Co-counsel Morgan, Eric J. 802-786-1040 p# 44 cp23 Co-counsel Morgan, Eric J. 802-786-1040 p# 45 cp9 Co-counsel Morgan, Eric J. 802-786-1040 p# 46 cp14 Co-counsel Vicari, Angela R. 212-836-8000 p# 47 cp15 Co-counsel Vicari, Angela R. 212-836-8000 p# 48 cp14 Co-counsel Herschlein, James D. 212-836-8000 p# 49 cp15 Co-counsel Herschlein, James D. 212-836-8000 p# 50 cp11 Co-counsel Tsekerides, Theodore E. 212-310-8218 p# 51 cp12 Co-counsel Tsekerides, Theodore E. 212-310-8218 p# 52 cp16 Co-counsel Tsekerides, Theodore E. 212-310-8218 p# 53 cp11 Co-counsel Lender, David J. 212-310-8153 p# 54 cp12 Co-counsel Lender, David J. 212-310-8153 p# 55 cp16 Co-counsel Lender, David J. 212-310-8153 p# 56 cp11 Co-counsel Brown, Allison M. p# 57 cp12 Co-counsel Brown, Allison M. p# 58 cp16 Co-counsel Brown, Allison M. p# 59 cp11 Co-counsel James, Cheryl A. 212-310-8325 p# 60 cp12 Co-counsel James, Cheryl A. 212-310-8325 p# 61 cp16 Co-counsel James, Cheryl A. 212-310-8325 p# 62 cp11 Co-counsel Winer, Jed P. 212-310-8177 p# 63 cp12 Co-counsel Winer, Jed P. 212-310-8177 p# 64 cp16 Co-counsel Winer, Jed P. 212-310-8177 p# 65 cp11 Co-counsel Akhavan, Melody E. p# 66 cp12 Co-counsel Akhavan, Melody E. p# 67 cp16 Co-counsel Akhavan, Melody E. p# 68 cp1 Co-counsel Burke, Carla M. p# 69 cp1 Co-counsel Summy, Paul S. 214-521-3605 p# 70 cp1 Co-counsel Evangelisti, Celeste A. 214-521-3605 p# 71 cp11 Co-counsel Maroney, Michael T. 617-305-2029 p# 72 cp12 Co-counsel Maroney, Michael T. 617-305-2029 p# 73 cp16 Co-counsel Maroney, Michael T. 617-305-2029 p# 74 cp11 Co-counsel Barnard, Deborah E. 617-305-2029 p# 75 cp12 Co-counsel Barnard, Deborah E. 617-305-2029 p# 76 cp16 Co-counsel Barnard, Deborah E. 617-305-2029 p# 77 cp5 Co-counsel Meyer, Lisa S. p# 78 cp5 Co-counsel Eimer, Nathan P. p# 79 cp5 Co-counsel Hanebutt, Pamela R. p# 80 cp5 Co-counsel Klafeta, Ameri R. 312-660-7635 p# 81 cp14 Co-counsel Pogust, Glenn 212-836-8000 p# 82 cp15 Co-counsel Pogust, Glenn 212-836-8000 p# 83 cp7 Co-counsel Allen, Brent H. 202-331-3100 p# 84 cp9 Co-counsel Allen, Brent H. 202-331-3100 p# 85 cp7 Co-counsel Ellison, Dawn A. 202-331-3157 p# 86 cp9 Co-counsel Ellison, Dawn A. 202-331-3157 p# 87 cp27 Co-counsel REMOVED p# 88 cp28 Co-counsel REMOVED p# 89 cp29 Co-counsel REMOVED p# 90 cp30 Co-counsel REMOVED p# 91 cp27 Co-counsel Bennett, James F. 314-889-7300 p# 92 cp28 Co-counsel Bennett, James F. 314-889-7300 p# 93 cp29 Co-counsel Bennett, James F. 314-889-7300 p# 94 cp30 Co-counsel Bennett, James F. 314-889-7300 p# 95 cp27 Co-counsel Evans, Selena L. 314-889-7308 p# 96 cp28 Co-counsel Evans, Selena L. 314-889-7308 p# 97 cp29 Co-counsel Evans, Selena L. 314-889-7308 p# 98 cp30 Co-counsel Evans, Selena L. 314-889-7308 p# 99 cp13 Co-counsel Leifer, Steven L. 202-639-7723 p# 100cp13 Co-counsel Danley, Christopher D. 202-639-7842 p# 101cp2 Co-counsel

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P.C. 005

p# 102cp2 Co-counsel Running, Andrew R. 312-862-2064 p# 103cp3 Co-counsel Running, Andrew R. 312-862-2064 p# 104cp2 Co-counsel Langan, James A. p# 105cp3 Co-counsel Langan, James A. p# 106cp2 Co-counsel Kassof, Andrew A. 312-862-2064 p# 107cp3 Co-counsel Kassof, Andrew A. 312-862-2064 p# 108cp2 Co-counsel Winston, Sylvia N. 312-862-2064 p# 109cp3 Co-counsel Winston, Sylvia N. 312-862-2064 p# 110cp23 Co-counsel Coppinger, Nessa H. 202-789-6053 p# 111cp23 Co-counsel Krainin, Daniel M. p# 112cp23 Co-counsel Guttmann, John S. Jr. 202-789-6020 p# 113cp4 Co-counsel Maher, James J. 713-276-7403 p# 114cp26 Co-counsel Maher, James J. 713-276-7403 p# 115cp4 Co-counsel Anderson, Jeremiah J. 713-276-7417 p# 116cp26 Co-counsel Anderson, Jeremiah J. 713-276-7417 p# 117cp1 Co-counsel Greenwald, Robin L. 212-558-5802 p# 118cp1 Co-counsel Krass, Benjamin A. 617-641-9550 p# 119cp1 Co-counsel Walsh, William p# 120cp25 Co-counsel Morgan, Eric J. 802-786-1040 p# 121cp4 Co-counsel Meadows, Robert E. p# 122cp26 Co-counsel Meadows, Robert E. p# 123cp1 Co-counsel Pawa, Matthew 617-641-9550 p# 124cp1 Co-counsel Gordon, Robert J. 212-558-5505 p# 125cp6 Co-counsel Weimer, Gregory A. 802-860-1500 p# 126cp18 Co-counsel Weimer, Gregory A. 802-860-1500 p# 127cp6 Co-counsel Eimer, Nathan P. p# 128cp18 Co-counsel Eimer, Nathan P. p# 129cp6 Co-counsel Hanebutt, Pamela R. p# 130cp18 Co-counsel Hanebutt, Pamela R. p# 131cp6 Co-counsel Meyer, Lisa S. p# 132cp18 Co-counsel Meyer, Lisa S. p# 133cp6 Co-counsel Klafeta, Ameri R. 312-660-7635 p# 134cp18 Co-counsel Klafeta, Ameri R. 312-660-7635 p# 135cp8 Co-counsel Kraus, Alan E. 212-906-3014 p# 136cp8 Co-counsel Thurlow, Matthew D. 202-637-1051 p# 137cp2 Co-counsel Langan, James A. p# 138cp3 Co-counsel Langan, James A. p# 139cp19 Co-counsel Kampman, John W. p# 140cp19 Co-counsel Dennis, Marie S. p# 141cp19 Co-counsel Pittman, Freggie P. p# 142cp19 Co-counsel Cooper, Harmon 301-875-5399 p# 143cp19 Co-counsel Condron, Peter C. 202-204-1000 p# 144cp19 Co-counsel Wallace, Richard E. Jr. 202-204-1000 p# 145cp4 Co-counsel Correll, Charles C. 415-318-1209 p# 146cp1 Co-counsel Kelman, Wesley p# 147cp27 Co-counsel Aspinall, Jennifer 314-889-7300 p# 148cp28 Co-counsel Aspinall, Jennifer 314-889-7300 p# 149cp29 Co-counsel Aspinall, Jennifer 314-889-7300 p# 150cp30 Co-counsel Aspinall, Jennifer 314-889-7300 p# 151cp27 Co-counsel Murrie, Kelly J.H. 314-889-7300 p# 152cp28 Co-counsel Murrie, Kelly J.H. 314-889-7300 p# 153cp29 Co-counsel Murrie, Kelly J.H. 314-889-7300 p# 154cp30 Co-counsel Murrie, Kelly J.H. 314-889-7300 =============================================================================== DISPUTES DsptCase Name Disputants Dispo Date -------------------------------------------------------------------------------- 1 cmpl Natural Resources Damages/Groundwater pr p#1 v p#2 2 cmpl Natural Resources Damages/Groundwater pr p#1 v p#3 3 cmpl Natural Resources Damages/Groundwater pr p#1 v p#4 4 cmpl Natural Resources Damages/Groundwater pr p#1 v p#5 5 cmpl Natural Resources Damages/Groundwater pr p#1 v p#6

Page 3 of 38VT Courts Online

P.C. 006

6 cmpl Natural Resources Damages/Groundwater pr p#1 v p#7 7 cmpl Natural Resources Damages/Groundwater pr p#1 v p#8 8 cmpl Natural Resources Damages/Groundwater pr p#1 v p#9 9 cmpl Natural Resources Damages/Groundwater pr p#1 v p#10 10 cmpl Natural Resources Damages/Groundwater pr p#1 v p#11 11 cmpl Natural Resources Damages/Groundwater pr p#1 v p#12 12 cmpl Natural Resources Damages/Groundwater pr p#1 v p#13 13 cmpl Natural Resources Damages/Groundwater pr p#1 v p#14 14 cmpl Natural Resources Damages/Groundwater pr p#1 v p#15 15 cmpl Natural Resources Damages/Groundwater pr p#1 v p#16 16 cmpl Natural Resources Damages/Groundwater pr p#1 v p#17 17 cmpl Natural Resources Damages/Groundwater pr p#1 v p#18 18 cmpl Natural Resources Damages/Groundwater pr p#1 v p#19 19 cmpl Natural Resources Damages/Groundwater pr p#1 v p#20 20 cmpl Natural Resources Damages/Groundwater pr p#1 v p#21 21 cmpl Natural Resources Damages/Groundwater pr p#1 v p#22 22 cmpl Natural Resources Damages/Groundwater pr p#1 v p#23 23 cmpl Natural Resources Damages/Groundwater pr p#1 v p#24 24 cmpl Natural Resources Damages/Groundwater pr p#1 v p#25 25 cmpl Natural Resources Damages/Groundwater pr p#1 v p#26 26 cmpl Natural Resources Damages/Groundwater pr p#1 v p#27 27 cmpl Natural Resources Damages/Groundwater pr p#1 v p#28 28 cmpl Natural Resources Damages/Groundwater pr p#1 v p#29 29 cmpl Natural Resources Damages/Groundwater pr p#1 v p#30 ================================================================================ MOTIONS/PETITIONS/REQUESTS FOR RELIEF No. Type Status Judge Date ------------------------------------------------------------------------------- 1 M/(Stipulated) to Extend Time to File Answ granted HT 07/09/14 2 M/for Pro Hac Vice (Tsekerides) granted HT 07/23/14 3 M/for Pro Hac Vice (Lender) der granted HT 07/23/14 4 M/for Pro Hac Vice(Brown) granted HT 07/23/14 5 M/for Pro Hac Vice(James) granted HT 07/23/14 6 M/for Pro Hac Vice (Winer) granted HT 07/23/14 7 M/for Pro Hac Vice(Akhavan) granted HT 07/23/14 8 M/(CITGO) for Designation as a Complex Act denied AMD 09/11/14 9 R/(CITGO) Request for Status Conference granted HT 07/23/14 10 M/for Pro Hac Vice (Pogust) granted HT 07/23/14 11 M/for Pro Hac Vice (Vicari) granted HT 07/23/14 12 M/for Pro Hac Vice (Herschlein) granted HT 07/23/14 13 M/(Exxon Mobil) to Dismiss grntprt MT 01/16/15 14 M/(Exxon) for Designation as a Complex Act error MT 07/18/14 15 M/for hearing (Status Conference) granted HT 07/23/14 16 M/for Pro Hac Vice (Klafeta) granted HT 07/23/14 17 M/for Pro Hac Vice (Meyer) granted HT 07/23/14 18 M/for Pro Hac Vice (Eimer) granted HT 07/23/14 19 M/for Pro Hac Vice (Hanebutt) granted HT 07/23/14 20 M/for Pro Hac Vice (Maroney) granted HT 07/23/14 21 M/for Pro Hac Vice (Barnard) granted HT 07/23/14 22 M/Limited Joinder In Motions-#8,13,14 moot HT 07/22/14 23 M/For Admission Pro Hac Vice - Summy granted HT 07/23/14 24 M/for Admission Pro Hac Vice-Evangelisti granted HT 07/23/14 25 M/for admission Pro Hac Vice-Burke granted HT 07/23/14 26 M/For Pro Hac Vice- Ellison granted HT 07/28/14 27 M/for Pro Hac Vice - Allen granted HT 07/28/14 28 M/For Pro Hac Vice - S Evans granted HT 07/31/14 29 M/For Pro Hac Vice - Bennett granted HT 07/31/14 30 M/For Pro Hac Vice - Epps granted HT 07/31/14 31 M/To Reschedule hearing granted HT 07/30/14 32 M/To (Consented) to reschedule Status Conf other HT 07/31/14 33 M/For Admission Pro Hac Vice - Danley granted HT 07/31/14 34 M/For Admission Pro Hac Vice-Leifer granted HT 07/31/14

Page 4 of 38VT Courts Online

P.C. 007

35 M/Joint Stipulation for Extension granted HT 07/31/14 36 M/For Admission Pro Hac Vice - Langan granted HT 08/04/14 37 M/For Admission Pro HAc Vice - Running granted HT 08/04/14 38 M/For admission Pro Hac Vice - Winston granted HT 08/04/14 39 M/For Admission Pro Hac Vice - Kassof granted HT 08/04/14 40 M/(Chevron) for Designation as Complex Act error MT 08/04/14 41 M/(Chevron & TRMI) to Dismiss error MT 08/04/14 42 M/for Admission Pro Hac Vice - Nessa Horew granted HT 08/11/14 43 M/for Admission Pro Hac Vice - John S. Gut granted HT 08/11/14 44 M/for Admission Pro Hac Vice - Daniel M. K granted HT 08/11/14 45 M/for Admission of Counsel Pro Hac Vice granted HT 08/12/14 46 M/for Admission Pro Hac Vice - Robin Green granted HT 08/12/14 47 M/for Admission Pro Hac Vice of Benjamin K granted HT 08/12/14 48 M/for Admission Pro Hac Vice of William Wa granted HT 08/12/14 49 M/for Admission of Counsel Pro Hac Vice granted HT 08/18/14 50 M/for Admission Pro Hac Vice - Matthew Paw granted HT 08/22/14 51 M/for Admission Pro Hac Vice - Robert Gord granted HT 08/22/14 52 M/(Total Petro) to Dismiss for Lack of Per denied MT 01/16/15 53 M/for Pro Hac Vice (Kraus & Thurlow) granted MT 09/04/14 54 M/(Plf) for Extension of time to respond t granted MT 09/09/14 55 M/(State) for Leave to file Preliminary Su judge MT 11/06/14 56 M/for Admission Pro Hac Vice - Amy Parker, granted MT 09/17/14 57 M/for Admission Pro Hac Vice of M. Coy Con granted MT 09/17/14 58 M/for Admission Pro Hac Vice of Robert Aye granted MT 09/17/14 59 M/(CITGO) for Entry of Order Authorizing E judge MT 09/22/14 60 M/(Joint) for Entry of Order re: Use of MD judge MT 11/06/14 61 M/(Dfts) Motion for Entry of a Case Manage judge MT 09/22/14 62 M/for Admission Pro Hac Vice granted MT 10/08/14 63 M/to Withdraw as Attorney -Willie Epps granted MT 04/17/15 64 M/for Admission of Counsel Pro Hac Vice (C granted MT 11/20/14 65 M/for Admission Pro Hac Vice of Kelly Murr granted MT 01/12/15 66 M/for Admission Pro Hac Vice of Jennifer A granted MT 01/12/15 67 M/(State) to Permit Interlocutory Appeal grntprt MT 05/22/15 68 M/(State) to Toll Deadline to File Amended granted MT 02/24/15 69 M/(Total Petrochemical) to Reconsider or, denprt MT 05/22/15 70 M/(State) for Admission Pro Hac Vice judge MT 04/09/15 71 M/(Renewed)For Designation as Complex Acti judge MT 07/16/15 ================================================================================ 06/05/14 1435928 - partyadd

State of Vermont, Plaintiff. 1435929 - partyadd

Atlantic Richfield Company, Defendant. 1435930 - partyadd

BP Products North America Inc. Defendant. 1435931 - partyadd

Chevron U.S.A.Inc. Defendant. 1435932 - partyadd

CITGO Petroleum Corporation, Defendant. 1435933 - partyadd

CITG Refining and Chemicals Company, L.P. Defendant. 1435934 - partyadd

Coastal Eagle Point Oil Company, Defendant. 1435935 - partyadd

Page 5 of 38VT Courts Online

P.C. 008

ConocoPhillips Company, Defendant. 1435936 - partyadd

El Paso Merchant Energy-Petroleu Company, Defendant. 1435937 - partyadd

Equilon Enterprises LLC, Defendant. 1435938 - partyadd

Exxon Mobil Corporation, Defendant. 1435940 - partyadd

ExxonMobil Oil Corporation, Defendant. 1435941 - partyadd

Hess Corporation, Defendant. 1435942 - partyadd

Highlands Fuel Delivery, LLC, Defendant. 1435943 - partyadd

Irving Oil Limited, Defendant. 1435944 - partyadd

Mobil Corporation, Defendant. 1435945 - partyadd

Motiva Enerprises LLC, Defendant. 1435946 - partyadd

PDV Midwest Refining, LLC, Defendant. 1435947 - partyadd

Shell Oil Company, Defendant. 1435948 - partyadd

Shell Oil Products Company LLC, Defendant. 1435949 - partyadd

Shell Petroleum Inc. Defendant. 1435951 - partyadd

Shell Trading(US) Company, Defendant. 1435952 - partyadd

Sunoco, Inc. (R&M), Defendant. 1435953 - partyadd

TMR Company, Defendant. 1435954 - partyadd

Total Petrochemicals & Refining, USA, Inc. Defendant. 1435955 - partyadd

TRMI-H LLC, Defendant. 1435956 - partyadd

Ultramar Energy, Inc. Defendant. 1435957 - partyadd

Valero Energy Corporation, Defendant. 1435958 - partyadd

Page 6 of 38VT Courts Online

P.C. 009

Valero Marketing and Supply Company, Defendant. 1435959 - partyadd

Valero Refining-Texas, L.P. Defendant. 1435960 - cvfile - status set to asd

Natural Resources Damages/Groundwater pr case filed by Plaintiff State of Vermont against Defendant Atlantic Richfield Company and Defendant BP Products North America Inc. and Defendant Chevron U.S.A.Inc. and Defendant CITGO Petroleum Corporation and Defendant CITG Refining and Chemicals Company, L.P. and Defendant Coastal Eagle Point Oil Company and Defendant ConocoPhillips Company and Defendant El Paso Merchant Energy-Petroleu Company and Defendant Equilon Enterprises LLC and Defendant Exxon Mobil Corporation and Defendant ExxonMobil Oil Corporation and Defendant Hess Corporation and Defendant Highlands Fuel Delivery, LLC and Defendant Irving Oil Limited and Defendant Mobil Corporation and Defendant Motiva Enerprises LLC and Defendant PDV Midwest Refining, LLC and Defendant Shell Oil Company and Defendant Shell Oil Products Company LLC and Defendant Shell Petroleum Inc. and Defendant Shell Trading(US) Company and Defendant Sunoco, Inc. (R&M) and Defendant TMR Company and Defendant Total Petrochemicals & Refining, USA, Inc. and Defendant TRMI-H LLC and Defendant Ultramar Energy, Inc. and Defendant Valero Energy Corporation and Defendant Valero Marketing and Supply Company and Defendant Valero Refining-Texas, L.P. Jury trial requested. 1435963 - jurreq

Jury trial requested by Plaintiff State of Vermont. 1435964 - partyadd

Co-counsel, party 1. 1435965 - partyadd

Co-counsel, party 1. 1435967 - letsent

letter advising of docket number assigned letter sent to Plaintiff State of Vermont. 07/02/14 1440252 - couappr

Appearance entered by Ritchie E. Berger on behalf of Defendant Exxon Mobil Corporation and Defendant ExxonMobil Oil Corporation and Defendant Mobil Corporation. 1441145 - mprfile

MPR 1) Motion (Stipulated) to Extend Time to File Answ filed by Plaintiff State of Vermont. Motion (Stipulated) to Extend Time to File Answ. Documents filed: Stipulated Motion to Extend Time to File; Answer. 07/03/14 1440357 - couappr

Appearance entered by John Thornton Sartore on behalf of Defendant Highlands Fuel Delivery, LLC. 07/09/14 1441108 - letsent

Copies of Order mailed to counsel letter sent to Plaintiff State of Vermont and Defendant Exxon Mobil Corporation and Defendant Highlands

Page 7 of 38VT Courts Online

P.C. 010

Fuel Delivery, LLC. 1441109 - letsent

Copies of Order mailed to counsel letter sent to party 1 Co-counsel and party 1 Co-counsel. 1441146 - mpreo

Entry order re MPR 1) Motion (Stipulated) to Extend Time to File Answ. Decision/Order. granted by HT. Compliance by 8/21/14. 07/10/14 1441190 - cstat - status set to aad

Case status changed. 07/11/14 1441469 - mprfile

MPR 2) Motion for Pro Hac Vice (Tsekerides) filed by Defendant Mobil Corporation. Motion for Pro Hac Vice (Tsekerides). Documents filed: Motion for Admission Pro Hac Vice/; Tsekerides; Proposed Order. Filed by; Atty. Berger. 1441470 - mprfile

MPR 3) Motion for Pro Hac Vice (Lender) der filed by Defendant Exxon Mobil Corporation and Defendant ExxonMobil Oil Corporation. Motion for Pro Hac Vice (Lender) der. Documents filed: Motion for Adm. Pro Hac Vice/Lender; Proposed Order filed by Atty. Berger. 1441471 - mprfile

MPR 4) Motion for Pro Hac Vice(Brown) filed by Defendant Exxon Mobil Corporation and Defendant ExxonMobil Oil Corporation. Motion for Pro Hac Vice(Brown). Documents filed: Motion for Adm. Pro Hac Vice/Brown; Proposed Order filed by Atty. Berger. 1441472 - mprfile

MPR 5) Motion for Pro Hac Vice(James) filed by Defendant Exxon Mobil Corporation and Defendant ExxonMobil Oil Corporation. Motion for Pro Hac Vice(James). Documents filed: Motion for Adm. Pro Hac Vice/James; Proposed Order filed by Atty. Berger. 1441473 - mprfile

MPR 6) Motion for Pro Hac Vice (Winer) filed by Defendant Exxon Mobil Corporation and Defendant ExxonMobil Oil Corporation. Motion for Pro Hac Vice (Winer). Documents filed: Motion for Adm. Pro Hac Vice/Winer; Proposed Order filed by Atty. Berger. 1441474 - mprfile

MPR 7) Motion for Pro Hac Vice(Akhavan) filed by Defendant Exxon Mobil Corporation and Defendant ExxonMobil Oil Corporation. Motion for Pro Hac Vice(Akhavan). Documents filed: Motion for Adm. Pro Hac Vice/Akhavan; Proposed Order filed by Atty. Berger. 07/16/14 1442104 - couappr

Appearance entered by Eric S. Miller on behalf of Defendant Ultramar Energy, Inc. and Defendant Valero Energy Corporation and Defendant Valero Marketing and Supply Company and Defendant Valero Refining-Texas, L.P. 1442217 - couappr

Appearance entered by Pietro J. Lynn on behalf of Defendant CITGO Petroleum Corporation. 1442219 - partyadd

Page 8 of 38VT Courts Online

P.C. 011

Co-counsel, party 5. 1442220 - mprfile

MPR 8) Motion (CITGO) for Designation as a Complex Act filed by Defendant CITGO Petroleum Corporation. Motion (CITGO) for Designation as a Complex Act. Documents filed: CITGO Petroleum Corporation's Motion for; Designation as a Complex Action. 1442221 - mprfile

MPR 9) Request (CITGO) Request for Status Conference filed by Defendant CITGO Petroleum Corporation. Request (CITGO) Request for Status Conference. Documents filed: CITGO Petroleum Corporation's Request; for a Status Conference. 07/17/14 1442347 - couappr

Appearance entered by John Thornton Sartore on behalf of Defendant Irving Oil Limited. 1442348 - mprfile

MPR 10) Motion for Pro Hac Vice (Pogust) filed by Defendant Highlands Fuel Delivery, LLC and Defendant Irving Oil Limited. Motion for Pro Hac Vice (Pogust). Documents filed: Motion for Admission Pro Hac Vice of; Glenn Pogust, Esq on behalf of Def's; Proposed Order. 1442349 - mprfile

MPR 11) Motion for Pro Hac Vice (Vicari) filed by Defendant Highlands Fuel Delivery, LLC and Defendant Irving Oil Limited. Motion for Pro Hac Vice (Vicari). Documents filed: Motion for Admission Pro Hac Vice of; Angela R. Vicari, Esq. on behalf of; Def's; Proposed Order.

1442351 - mprfile

MPR 12) Motion for Pro Hac Vice (Herschlein) filed by Defendant Highlands Fuel Delivery, LLC and Defendant Irving Oil Limited. Motion for Pro Hac Vice (Herschlein). Documents filed: Motion for Admission Pro Hac Vice of; James D. Herschlein, Esq. on behalf of; Def's; Proposed Order. 07/18/14 1442476 - mprfile

MPR 13) Motion (Exxon Mobil) to Dismiss filed by Defendant Exxon Mobil Corporation and Defendant ExxonMobil Oil Corporation and Defendant Mobil Corporation. Motion (Exxon Mobil) to Dismiss. Documents filed: Exxon Mobil, ExxonMobil Oil & Mobil; Corp's Mo. to Dismiss, Affidavit of; Atty Berger in support. 1442477 - mprfile

MPR 14) Motion (Exxon) for Designation as a Complex Act filed by Defendant Exxon Mobil Corporation and Defendant ExxonMobil Oil Corporation and Defendant Mobil Corporation. Motion (Exxon) for Designation as a Complex Act. 1442479 - mprfile

MPR 15) Motion for hearing (Status Conference) filed by Defendant Exxon Mobil Corporation and Defendant ExxonMobil Oil Corporation and Defendant Mobil Corporation. Motion for hearing (Status Conference).

1450378 - mprstat

MPR 14 status changed to error.

Page 9 of 38VT Courts Online

P.C. 012

07/21/14 1442610 - couappr

Appearance entered by Matthew B. Byrne on behalf of Defendant Motiva Enerprises LLC and Defendant Shell Oil Company and Defendant Shell Oil Products Company LLC and Defendant Shell Petroleum Inc. and Defendant Shell Trading(US) Company. 1442612 - couappr

Appearance entered by Matthew B. Byrne on behalf of Defendant TMR Company. 1442613 - couappr

Appearance entered by Matthew B. Byrne on behalf of Defendant Equilon Enterprises LLC. 1442614 - partyadd

Co-counsel, party 10. 1442615 - partyadd

Co-counsel, party 17. 1442616 - partyadd

Co-counsel, party 19. 1442617 - partyadd

Co-counsel, party 20. 1442618 - partyadd

Co-counsel, party 21. 1442619 - partyadd

Co-counsel, party 22. 1442620 - partyadd

Co-counsel, party 24. 1442627 - couappr

Appearance entered by Harry R. Ryan III on behalf of Defendant Coastal Eagle Point Oil Company and Defendant El Paso Merchant Energy-Petroleu Company and Defendant Hess Corporation. 1442628 - couappr

Appearance entered by Harry R. Ryan III on behalf of Defendant Sunoco, Inc. (R&M). 1442632 - mprfile

MPR 16) Motion for Pro Hac Vice (Klafeta) filed by Defendant CITGO Petroleum Corporation. Motion for Pro Hac Vice (Klafeta). Documents filed: Motion of Defendant Citgo Petroleum Corp; for the Admission Pro Hac Vice of Ameri; R. Klafeta; Proposed Order. 1442637 - mprfile

MPR 17) Motion for Pro Hac Vice (Meyer) filed by Defendant CITGO Petroleum Corporation. Motion for Pro Hac Vice (Meyer). Documents filed: Motion of Defendant Citgo Petroleum Corp; for the Admission Pro Hac Vice of Lisa S; Meyer; Proposed Order. 1442638 - mprfile

MPR 18) Motion for Pro Hac Vice (Eimer) filed by Defendant CITGO Petroleum Corporation. Motion for Pro Hac Vice (Eimer). Documents filed: Motion of Defendant Citgo Petroleum Corp; for the Admission

Page 10 of 38VT Courts Online

P.C. 013

Pro Hac Vice of Nathan. 1442639 - mprfile

MPR 19) Motion for Pro Hac Vice (Hanebutt) filed by Defendant CITGO Petroleum Corporation. Motion for Pro Hac Vice (Hanebutt). Documents filed: Motion of Def. Citgo Petroleum Corp. for; the Admission Pro Hac Vice of Pamela R; Hanebutt; Proposed Order. 1442642 - couappr

Appearance entered by Robin L. Stern on behalf of Defendant Atlantic Richfield Company and Defendant BP Products North America Inc. 1442664 - partyadd

Co-counsel, party 23. 1442666 - partyadd

Co-counsel, party 13. 1442667 - partyadd

Co-counsel, party 7. 1442668 - partyadd

Co-counsel, party 23. 1442669 - partyadd

Co-counsel, party 9. 07/22/14 1442796 - mprfile

MPR 20) Motion for Pro Hac Vice (Maroney) filed by Defendant Exxon Mobil Corporation. Motion for Pro Hac Vice (Maroney). Documents filed: Motion for Admission Pro Hac Vice of; Michael T. Maroney; Proposed Order. 1442797 - mprfile

MPR 21) Motion for Pro Hac Vice (Barnard) filed by Defendant Exxon Mobil Corporation. Motion for Pro Hac Vice (Barnard). Documents filed: Motion for Admission Pro Hac Vice of; Deborah E. Barnard, Esq; Proposed Order. 1442806 - mprfile

MPR 22) Motion Limited Joinder In Motions-#8,13,14 filed by Defendant Highlands Fuel Delivery, LLC and Defendant Irving Oil Limited. Motion Limited Joinder In Motions-#8,13,14. Documents filed: Highland's & Irving Oil limited; joinder in Motions. 1442878 - mprfile

MPR 23) Motion For Admission Pro Hac Vice - Summy filed by Plaintiff State of Vermont. Motion For Admission Pro Hac Vice - Summy. Documents filed: Mo. for admission pro hac vice of; Paul Scott Summy.

1442879 - mprfile

MPR 24) Motion for Admission Pro Hac Vice-Evangelisti filed by Plaintiff State of Vermont. Motion for Admission Pro Hac Vice-Evangelisti. Documents filed: Mo. for admission pro hac vice of; Celeste A. Evangelisti. 1442880 - mprfile

MPR 25) Motion for admission Pro Hac Vice-Burke filed by Plaintiff State of Vermont. Motion for admission Pro Hac Vice-Burke. Documents filed: Mo. for admission Pro Hac Vice; Carla m. Burke.

Page 11 of 38VT Courts Online

P.C. 014

1442881 - mprjudge

MPR's 23-25: 23) Motion For Admission Pro Hac Vice - Summy; 24) Motion for Admission Pro Hac Vice-Evangelisti; 25) Motion for admission Pro Hac Vice-Burke given to Judge Helen M. Toor. Service complete on party(s) 2: other. Documents served: Aff. of Service serving Summons &; Complaint. Service complete on party(s) 3: personal service. Documents served: Return of Service serving Summons &; Complaint; Jury Demand. Service complete on party(s) 4: personal service. Documents served: Return of Service serving Summons &; Complaint; Jury Demand. Service complete on party(s) 5: personal service. Documents served: Return of Service serving Summons &; Complaint. Service complete on party(s) 6: other. Documents served: Aff. of Service serving Summons &; Complaint. Service complete on party(s) 7: other. Documents served: Return of Service serving Summons &; Complaint. Service complete on party(s) 8: personal service. Documents served: Return of Service serving Summons &; Complaint; Jury Demand. Service complete on party(s) 9: other. Documents served: Return of Service serving Summons &; Complaint. Service complete on party(s) 10: personal service. Documents served: Return of Service serving Summons &; Complaint. Service complete on party(s) 11: personal service. Documents served: Return of Service serving Summons &; Complaint; Jury Demand. Service complete on party(s) 12: personal service. Documents served: Return of Service serving Summons &; Complaint; Jury Demand. Service complete on party(s) 13: personal service. Documents served: Return of Service serving Summons &; Complaint. Service complete on party(s) 14: personal service. Documents served: Return of Service serving Summons &; Complaint. Service complete on party(s) 15: personal service. Documents served: Return of Service serving Summons &; Complaint; Jury Demand. Service complete on party(s) 16: other. Documents served: Aff. of Service serving Summons &; Complaint. Service complete on party(s) 17: personal service. Documents served: Return of Service serving Summons &; Complaint. Service complete on party(s) 18: other. Documents served: Aff. of Service serving Summons &; Complaint. Service complete on party(s) 19: personal service. Documents served: Return of Service serving Summons &; Complaint. Service complete on party(s) 20: other. Documents served: Aff. of Service serving Summons &; Complaint. Service complete on party(s) 21: other. Documents served: Aff. of Service serving Summons &; Complaint. Service complete on party(s) 22: personal service. Documents served: Return of Service serving Summons &; Complaint. Service complete on party(s) 23: personal service. Documents served: Return of Service serving Summons &; Complaint; Jury Demand. Service complete on party(s) 24: personal service. Documents served: Return of Service serving Summons &; Complaint. Service complete on party(s) 25: other. Documents served: Return of Service serving Summons &; Complaint. Service complete on party(s) 26: other. Documents served: Return of Service serving Summons &; Complaint. Service complete on party(s) 27: personal service. Documents served: Return of Service serving Summons &; Complaint. Service complete on party(s) 28: other. Documents served: Return of Service serving Summons &; Complaint. Service complete on party(s) 29: personal service. Documents served: Return of Service serving Summons &; Complaint. Service complete on party(s) 30: other. Documents served: Return of Service serving Summons &; complaint. 1443096 - cstat

Case status changed. 1443097 - cstat

Case status changed.

Page 12 of 38VT Courts Online

P.C. 015

1446073 - mprstat

MPR 22 status changed to moot. 1446074 - mprmemo

Party 14-15 filed response to MPR 8,13-14. 07/23/14 1443030 - mpreo

Entry order re MPR 9) Request (CITGO) Request for Status Conference. M/Reaction Form. granted by HT. 1443031 - mpreo

Entry order re MPR 15) Motion for hearing (Status Conference). M/Reaction Form. granted by HT. The court suggests that defendants select representatives rather than attempting to have all counsel part- icipte. Counsel may participate by phone if they are all on one conference call. 1443037 - hrgset

Status Conference set for 08/13/14 at 02:30 PM. ONE HOUR HAS BEEN ALLOTTED. 1443042 - letsent

Copies of Order mailed to counsel letter sent to Plaintiff State of Vermont and Defendant Atlantic Richfield Company and Defendant CITGO Petroleum Corporation and Defendant Coastal Eagle Point Oil Company.

1443043 - letsent

Copies of Order mailed to counsel letter sent to Defendant Equilon Enterprises LLC and Defendant Exxon Mobil Corporation and Defendant Highlands Fuel Delivery, LLC. 1443045 - letsent

Copies of Order mailed to counsel letter sent to Defendant Mobil Corporation and Defendant Motiva Enerprises LLC and Defendant Ultramar Energy, Inc. 1443046 - letsent

Copies of Order mailed to counsel letter sent to Defendant Ultramar Energy, Inc. and party 1 Co-counsel and party 1 Co-counsel and party 5 Co-counsel and party 10 Co-counsel. 1443047 - letsent

Copies of Order mailed to counsel letter sent to party 23 Co-counsel.

1443055 - note

Letter from Atty McDougall RE: Hearing date 8/19/ or 8/20. 1443103 - note

Phone call from Atty Weiner - Parties would really like 8/19 or 8/20.

1443105 - note

Per Judge Toor ( parties do not like the date of 8/13) Parties are to agree on a date & send Mo. to reschedule. They may not get the date they want. Called Atty Weimer - told him what Judge said. He will talk with Attorneys. 1443113 - mpreo

Page 13 of 38VT Courts Online

P.C. 016

Entry order re MPR 7) Motion for Pro Hac Vice(Akhavan). M/Reaction Form. granted by HT. Order filed ( Melody E. Akhavan), copy sent to Atty Berger. 1443114 - mpreo

Entry order re MPR 6) Motion for Pro Hac Vice (Winer). M/Reaction Form. granted by HT. Order filed, (Jed P. Winer) copy sent Atty Berger. 1443116 - letsent

Copies of Order mailed to counsel letter sent to Defendant Exxon Mobil Corporation. 1443117 - mpreo

Entry order re MPR 5) Motion for Pro Hac Vice(James). M/Reaction Form. granted by HT. Order filed ( Cheryl James), copy sent to Atty Berger. 1443118 - mpreo

Entry order re MPR 4) Motion for Pro Hac Vice(Brown). M/Reaction Form. granted by HT. Order filed, ( Allison Brown ) copy sent to Atty Berger. 1443119 - mpreo

Entry order re MPR 3) Motion for Pro Hac Vice (Lender) der. M/Reaction Form. granted by HT. Order filed, ( David J. Lender ) copy sent to Atty Berger. 1443122 - mpreo

Entry order re MPR 2) Motion for Pro Hac Vice (Tsekerides). M/Reaction Form. granted by HT. Order filed, ( Theodore Tsekerides ) copy sent to Atty Berger. 1443125 - mpreo

Entry order re MPR 12) Motion for Pro Hac Vice (Herschlein). M/Reaction Form. granted by HT. Order filed, ( James Herschlein ).

1443128 - mpreo

Entry order re MPR 10) Motion for Pro Hac Vice (Pogust). M/Reaction Form. granted by HT. Order filed, ( Glenn Pogust) copy sent to Atty Sartore. 1443133 - mpreo

Entry order re MPR 11) Motion for Pro Hac Vice (Vicari). M/Reaction Form. granted by HT. Order filed, ( Angela Vicari ) copy sent to Atty Sartore. 1443139 - mpreo

Entry order re MPR 16) Motion for Pro Hac Vice (Klafeta). M/Reaction Form. granted by HT. Order filed, ( Ameri Klafeta)copy sent to Atty Lynn. 1443143 - mpreo

Entry order re MPR 19) Motion for Pro Hac Vice (Hanebutt). M/Reaction Form. granted by HT. Order filed, ( Pamela Hanebutt ) copy sent to Atty Lynn. 1443146 - mpreo

Entry order re MPR 18) Motion for Pro Hac Vice (Eimer). M/Reaction Form. granted by HT. Order filed, (Nathan Eimer) copy sent to Atty Lynn.

Page 14 of 38VT Courts Online

P.C. 017

1443147 - mpreo

Entry order re MPR 17) Motion for Pro Hac Vice (Meyer). M/Reaction Form. granted by HT. Order filed, ( Lisa Meyer ) copy sent to Atty Lynn. 1443148 - mpreo

Entry order re MPR 21) Motion for Pro Hac Vice (Barnard). M/Reaction Form. granted by HT. Order filed, ( Deborah Barnard) copy sent to Atty Berger. 1443150 - mpreo

Entry order re MPR 20) Motion for Pro Hac Vice (Maroney). M/Reaction Form. granted by HT. Order filed, ( Michael Maroney) copy sent to Atty Berger. 1443151 - mpreo

Entry order re MPR 24) Motion for Admission Pro Hac Vice-Evangelisti. M/Reaction Form. granted by HT. Order filed, ( Celeste Evangelisti) copy sent to Atty Kline. 1443154 - mpreo

Entry order re MPR 23) Motion For Admission Pro Hac Vice - Summy. M/Reaction Form. granted by HT. Order filed, ( Paul Scott Summy) copy sent to Atty Kline. 1443156 - mpreo

Entry order re MPR 25) Motion for admission Pro Hac Vice-Burke. M/Reaction Form. granted by HT. Order filed, ( Carla Burke) copy sent To Atty Kline. 1443157 - letsent

Copies of Order mailed to counsel letter sent to Defendant Highlands Fuel Delivery, LLC. 1443158 - letsent

Copies of Order mailed to counsel letter sent to Defendant CITGO Petroleum Corporation. 1443159 - letsent

Copies of Order mailed to counsel letter sent to Plaintiff State of Vermont. 1443179 - partyadd

Co-counsel, party 14. 1443182 - partyadd

Co-counsel, party 15. 1443183 - partyadd

Co-counsel, party 14. 1443186 - partyadd

Co-counsel, party 15. 1443187 - partyadd

Co-counsel, party 11. 1443193 - partyadd

Co-counsel, party 12. 1443194 - partyadd

Page 15 of 38VT Courts Online

P.C. 018

Co-counsel, party 16. 1443195 - partyadd

Co-counsel, party 11. 1443196 - partyadd

Co-counsel, party 12. 1443197 - partyadd

Co-counsel, party 16. 1443198 - partyadd

Co-counsel, party 11. 1443199 - partyadd

Co-counsel, party 12. 1443200 - partyadd

Co-counsel, party 16. 1443201 - partyadd

Co-counsel, party 11. 1443202 - partyadd

Co-counsel, party 12. 1443203 - partyadd

Co-counsel, party 16. 1443204 - partyadd

Co-counsel, party 11. 1443205 - partyadd

Co-counsel, party 12. 1443206 - partyadd

Co-counsel, party 16. 1443207 - partyadd

Co-counsel, party 11. 1443208 - partyadd

Co-counsel, party 12. 1443209 - partyadd

Co-counsel, party 16. 1443210 - partyadd

Co-counsel, party 1. 1443211 - partyadd

Co-counsel, party 1. 1443212 - partyadd

Co-counsel, party 1. 1443213 - partyadd

Co-counsel, party 11. 1443214 - partyadd

Co-counsel, party 12. 1443215 - partyadd

Page 16 of 38VT Courts Online

P.C. 019

Co-counsel, party 16. 1443216 - partyadd

Co-counsel, party 11. 1443217 - partyadd

Co-counsel, party 12. 1443218 - partyadd

Co-counsel, party 16. 1443219 - partyadd

Co-counsel, party 5. 1443221 - partyadd

Co-counsel, party 5. 1443223 - partyadd

Co-counsel, party 5. 1443224 - partyadd

Co-counsel, party 5. 1443226 - partyadd

Co-counsel, party 14. 1443227 - partyadd

Co-counsel, party 15. 1444086 - mprfile

MPR 31) Motion To Reschedule hearing filed by party 1 Co-counsel. Motion To Reschedule hearing. 1444087 - mprjudge

MPR 31) Motion To Reschedule hearing given to Judge Helen M. Toor. 07/24/14 1443235 - letsent

Copies of Order mailed to counsel letter sent to Plaintiff State of Vermont and Defendant Atlantic Richfield Company and Defendant CITGO Petroleum Corporation and Defendant Coastal Eagle Point Oil Company.

1443236 - letsent

Copies of Order mailed to counsel letter sent to Defendant Equilon Enterprises LLC and Defendant Exxon Mobil Corporation and Defendant Highlands Fuel Delivery, LLC. 1443237 - letsent

Copies of Order mailed to counsel letter sent to Defendant Motiva Enerprises LLC and Defendant Ultramar Energy, Inc. and party 1 Co-counsel. 1443239 - letsent

Copies of Order mailed to counsel letter sent to party 1 Co-counsel and party 5 Co-counsel and party 10 Co-counsel and party 23 Co-counsel. 1443240 - letsent

Copies of Order mailed to counsel letter sent to party 14 Co-counsel and party 14 Co-counsel and party 11 Co-counsel.

Page 17 of 38VT Courts Online

P.C. 020

1443241 - letsent

Copies of Order mailed to counsel letter sent to party 11 Co-counsel and party 11 Co-counsel and party 11 Co-counsel. 1443242 - letsent

Copies of Order mailed to counsel letter sent to party 11 Co-counsel and party 11 Co-counsel and party 1 Co-counsel. 1443243 - letsent

Copies of Order mailed to counsel letter sent to party 1 Co-counsel and party 1 Co-counsel and party 11 Co-counsel and party 11 Co-counsel. 1443244 - letsent

Copies of Order mailed to counsel letter sent to party 5 Co-counsel and party 5 Co-counsel and party 5 Co-counsel and party 5 Co-counsel and party 14 Co-counsel. 07/25/14 1443599 - mprfile

MPR 26) Motion For Pro Hac Vice- Ellison filed by Defendant Coastal Eagle Point Oil Company and Defendant El Paso Merchant Energy-Petroleu Company. Motion For Pro Hac Vice- Ellison. Documents filed: Mo. for Pro Hac Vice of Dawn Ellison. 1443601 - mprfile

MPR 27) Motion for Pro Hac Vice - Allen filed by Defendant Coastal Eagle Point Oil Company and Defendant El Paso Merchant Energy-Petroleu Company. Motion for Pro Hac Vice - Allen. Documents filed: MO. for Pro Hac Vise - Brent Allen. 1443603 - mprjudge

MPR's 26-27: 26) Motion For Pro Hac Vice- Ellison; 27) Motion for Pro Hac Vice - Allen given to Judge Helen M. Toor. 07/28/14 1443659 - mpreo

Entry order re MPR 27) Motion for Pro Hac Vice - Allen. M/Reaction Form. granted by HT. Order filed, copy sent. 1443661 - mpreo

Entry order re MPR 26) Motion For Pro Hac Vice- Ellison. M/Reaction Form. granted by HT. Order filed, copy sent. 1443672 - letsent

Copies of Order mailed to counsel letter sent to Plaintiff State of Vermont and Defendant Atlantic Richfield Company and Defendant CITGO Petroleum Corporation and Defendant Equilon Enterprises LLC. 1443674 - letsent

Copies of Order mailed to counsel letter sent to Defendant Exxon Mobil Corporation and Defendant Hess Corporation and Defendant Highlands Fuel Delivery, LLC. 1443677 - letsent

Copies of Order mailed to counsel letter sent to Defendant Ultramar Energy, Inc. and party 1 Co-counsel and party 1 Co-counsel and party 5 Co-counsel and party 10 Co-counsel. 1443680 - letsent

Copies of Order mailed to counsel letter sent to party 23 Co-counsel.

Page 18 of 38VT Courts Online

P.C. 021

1443771 - partyadd

Co-counsel, party 7. 1443773 - partyadd

Co-counsel, party 9. 1443774 - partyadd

Co-counsel, party 7. 1443775 - partyadd

Co-counsel, party 9. 1443776 - letsent

Copies of Order mailed to counsel letter sent to party 7 Co-counsel and party 7 Co-counsel. 07/30/14 1444063 - mprfile

MPR 28) Motion For Pro Hac Vice - S Evans filed by Defendant Valero Energy Corporation. Motion For Pro Hac Vice - S Evans. Documents filed: Mo. for Admission Pro Hac Vice of; Selena L. Evans. 1444065 - mprfile

MPR 29) Motion For Pro Hac Vice - Bennett filed by Defendant Ultramar Energy, Inc. Motion For Pro Hac Vice - Bennett. Documents filed: Mo.for Admission Pro Hac Vice of; James F. Bennett. 1444066 - mprfile

MPR 30) Motion For Pro Hac Vice - Epps filed by Defendant Ultramar Energy, Inc. Motion For Pro Hac Vice - Epps. Documents filed: Mo. for Admission Pro Hac Vice of; Willie J. Epps. 1444067 - mprjudge

MPR's 28-30: 28) Motion For Pro Hac Vice - S Evans; 29) Motion For Pro Hac Vice - Bennett; 30) Motion For Pro Hac Vice - Epps given to Judge Helen M. Toor. 1444154 - mpreo

Entry order re MPR 31) Motion To Reschedule hearing. M/Reaction Form. granted by HT. As the letter states that the 19th or 20th both work for both sides. The court will reschedule to one of those dates. Please discuss in advance a proposed discovery schedule. 1444156 - hrgset

Status Conference set for 08/19/14 at 01:00 PM. THIS HEARING HAS BEEN RESCHEDULED FROM 8/13/14, ONE HOUR HAS BEEN ALLOTTED. 1444159 - letsent

Copies of Order mailed to counsel letter sent to Plaintiff State of Vermont and Defendant Atlantic Richfield Company and Defendant CITGO Petroleum Corporation and Defendant Coastal Eagle Point Oil Company.

1444160 - letsent

Copies of Order mailed to counsel letter sent to Defendant Equilon Enterprises LLC and Defendant Exxon Mobil Corporation and Defendant Hess Corporation. 1444161 - letsent

Copies of Order mailed to counsel letter sent to Defendant Highlands

Page 19 of 38VT Courts Online

P.C. 022

Fuel Delivery, LLC and Defendant Mobil Corporation and Defendant Motiva Enerprises LLC. 1444162 - letsent

Copies of Order mailed to counsel letter sent to Defendant Ultramar Energy, Inc. and party 1 Co-counsel and party 1 Co-counsel and party 5 Co-counsel and party 10 Co-counsel. 1444168 - hrgcan

Status Conference scheduled for 08/13/14 rescheduled. 1444170 - mpreo

Entry order re MPR 30) Motion For Pro Hac Vice - Epps. M/Reaction Form. granted by HT. Order Pro Hac Vice - Willie J. Epps. 1444171 - mpreo

Entry order re MPR 29) Motion For Pro Hac Vice - Bennett. M/Reaction Form. granted by HT. Order filed, pro hac vice- James F. Bennett.

1444172 - mpreo

Entry order re MPR 28) Motion For Pro Hac Vice - S Evans. M/Reaction Form. granted by HT. Order filed, pro hac vice -Selena L. Evans.

1444176 - letsent

Copies of Order mailed to counsel letter sent to Plaintiff State of Vermont and Defendant Atlantic Richfield Company and Defendant CITGO Petroleum Corporation and Defendant CITG Refining and Chemicals Company, L.P. and Defendant Coastal Eagle Point Oil Company. 1444177 - letsent

Copies of Order mailed to counsel letter sent to Plaintiff State of Vermont and Defendant Atlantic Richfield Company and Defendant BP Products North America Inc. and Defendant Chevron U.S.A.Inc. and Defendant CITGO Petroleum Corporation and Defendant CITG Refining and Chemicals Company, L.P. and Defendant Coastal Eagle Point Oil Company and Defendant ConocoPhillips Company and Defendant El Paso Merchant Energy-Petroleu Company and Defendant Equilon Enterprises LLC and Defendant Exxon Mobil Corporation and Defendant ExxonMobil Oil Corporation and Defendant Hess Corporation and Defendant Highlands Fuel Delivery, LLC. 1444178 - letsent

Copies of Order mailed to counsel letter sent to Defendant Ultramar Energy, Inc. and party 1 Co-counsel and party 1 Co-counsel and party 5 Co-counsel and party 10 Co-counsel. 1444180 - partyadd

Co-counsel, party 27. 1444181 - partyadd

Co-counsel, party 28. 1444182 - partyadd

Co-counsel, party 29. 1444183 - partyadd

Co-counsel, party 30. 1444184 - partyadd

Co-counsel, party 27.

Page 20 of 38VT Courts Online

P.C. 023

1444185 - partyadd

Co-counsel, party 28. 1444186 - partyadd

Co-counsel, party 29. 1444187 - partyadd

Co-counsel, party 30. 1444188 - partyadd

Co-counsel, party 27. 1444189 - partyadd

Co-counsel, party 28. 1444190 - partyadd

Co-counsel, party 29. 1444191 - partyadd

Co-counsel, party 30. 1444192 - letsent

Copies of Order mailed to counsel letter sent to party 27 Co-counsel and party 27 Co-counsel and party 27 Co-counsel. 1444195 - mprmemo

Party 1 filed response to MPR 8. 1444197 - mprfile

MPR 32) Motion To (Consented) to reschedule Status Conf filed by Plaintiff State of Vermont. Motion To (Consented) to reschedule Status Conf. Documents filed: Plfs Consented-To Motion to reschedule; status conference. 1444198 - mprjudge

MPR 31) Motion To Reschedule hearing given to Judge Helen M. Toor.

1444305 - mprstat

MPR 31 status changed to granted. 07/31/14 1444225 - mprfile

MPR 33) Motion For Admission Pro Hac Vice - Danley filed by Defendant Coastal Eagle Point Oil Company. Motion For Admission Pro Hac Vice - Danley. Documents filed: Mo. for Admission Pro Hac Vice of; Christopher Dwight Danley; proposed order; Certificate of Service.

1444226 - mprfile

MPR 34) Motion For Admission Pro Hac Vice-Leifer filed by Defendant Coastal Eagle Point Oil Company. Motion For Admission Pro Hac Vice-Leifer. Documents filed: Mo. for Admission Pro Hac Vice; Steven L. Leifer, proposed order. 1444227 - mprjudge

MPR's 33-34: 33) Motion For Admission Pro Hac Vice - Danley; 34) Motion For Admission Pro Hac Vice-Leifer given to Judge Helen M. Toor. 1444228 - mprjudge

Page 21 of 38VT Courts Online

P.C. 024

MPR 32) Motion To (Consented) to reschedule Status Conf given to Judge Helen M. Toor. 1444230 - mprfile

MPR 35) Motion Joint Stipulation for Extension filed by party 1 Co-counsel. Motion Joint Stipulation for Extension. Documents filed: Joint Stipulation for extension of; deadlines relating to Exxons Motion; to Dismiss; Proposed ORder. 1444242 - mprstat

MPR 35 status changed to granted. 1444243 - mpreo

Entry order re MPR 34) Motion For Admission Pro Hac Vice-Leifer. M/Reaction Form. granted by HT. Order filed, Pro Hac Vice Steven L. Leifer, Copies sent to Vermont counsel only, plus Atty Leifer. 1444244 - mpreo

Entry order re MPR 33) Motion For Admission Pro Hac Vice - Danley. M/Reaction Form. granted by HT. Order filed, Pro Hac Vice Christopher Dunley. Copies sent to Vermont counsel & Atty Dunley.

1444246 - partyadd

Co-counsel, party 13. 1444247 - partyadd

Co-counsel, party 13. 1444248 - letsent

Copies of Order mailed to counsel letter sent to party 13 Co-counsel and party 13 Co-counsel. 1444250 - mpreo

Entry order re MPR 32) Motion To (Consented) to reschedule Status Conf. M/Reaction Form. other by HT. Moot. Already rescheduled.

1444261 - letsent

Copies of Order mailed to counsel letter sent to Defendant Highlands Fuel Delivery, LLC and Defendant Ultramar Energy, Inc. 08/01/14 1444435 - mprfile

MPR 36) Motion For Admission Pro Hac Vice - Langan filed by Defendant Atlantic Richfield Company and Defendant BP Products North America Inc. Motion For Admission Pro Hac Vice - Langan. Documents filed: Mo. for admission Pro Hac Vice-; J. Andrew Langan. 1444436 - mprfile

MPR 37) Motion For Admission Pro HAc Vice - Running filed by Defendant Atlantic Richfield Company and Defendant BP Products North America Inc. Motion For Admission Pro HAc Vice - Running. Documents filed: Mo. for Admission Pro Hac Vise -; Andrew Richard Running.

1444437 - mprfile

MPR 38) Motion For admission Pro Hac Vice - Winston filed by Defendant Atlantic Richfield Company and Defendant BP Products North America Inc. Motion For admission Pro Hac Vice - Winston. Documents filed: Mo. for Admission Pro Hac Vice -; Sylvia Nichole Winston.

Page 22 of 38VT Courts Online

P.C. 025

1444438 - mprfile

MPR 39) Motion For Admission Pro Hac Vice - Kassof filed by Defendant Atlantic Richfield Company and Defendant BP Products North America Inc. Motion For Admission Pro Hac Vice - Kassof. Documents filed: Mo. for Admission Pro Hac Vice -; Andrew A. Kassof. 1444439 - mprjudge

MPR's 36-39: 36) Motion For Admission Pro Hac Vice - Langan; 37) Motion For Admission Pro HAc Vice - Running; 38) Motion For admission Pro Hac Vice - Winston; 39) Motion For Admission Pro Hac Vice - Kassof given to Judge Helen M. Toor. 08/04/14 1444540 - couappr

Appearance entered by R. Bradford Fawley on behalf of Defendant Chevron U.S.A.Inc. 1444541 - couappr

Appearance entered by R. Bradford Fawley on behalf of Defendant TRMI-H LLC. 1444542 - mprfile

MPR 40) Motion (Chevron) for Designation as Complex Act filed by Defendant Chevron U.S.A.Inc. and Defendant TRMI-H LLC. Motion (Chevron) for Designation as Complex Act. Documents filed: defendants Chevron & TRMI's Motion for; Designation as a Complex Action. 1444543 - mprfile

MPR 41) Motion (Chevron & TRMI) to Dismiss filed by Defendant Chevron U.S.A.Inc. and Defendant TRMI-H LLC. Motion (Chevron & TRMI) to Dismiss. Documents filed: Defendants Chevron and TRMI's Motion to; Dismiss. 1444672 - note

Order issued:. The court hereby orders that in this case all rulings and hrgs. notices from the court shall be sent by the clerk's office only to the local counsel. Local counsel will be responsible for passing along such materials to the pro hac vice attorneys with whom they are associated. (See order for complete ruling). 1444704 - mpreo

Entry order re MPR 38) Motion For admission Pro Hac Vice - Winston. M/Reaction Form. granted by HT. Although the pro hac vice licenses for 4 of these attorneys were attached to the wrong motions, all were accounted for so the court has shuffled the licenses to the correct motions and grants them all. Order issued re: Sylvia Nichole Winston, Esq. 1444718 - partyadd

Co-counsel, party 2. 1444735 - mpreo

Entry order re MPR 36) Motion For Admission Pro Hac Vice - Langan. M/Reaction Form. granted by HT. Order issued re: James Andrew Langan, Esq. 1444737 - mpreo

Entry order re MPR 37) Motion For Admission Pro HAc Vice - Running. M/Reaction Form. granted by HT. Order issued re: Andrew Richard Running, Esq. 1444738 - mpreo

Page 23 of 38VT Courts Online

P.C. 026

Entry order re MPR 39) Motion For Admission Pro Hac Vice - Kassof. M/Reaction Form. granted by HT. Order issued re: Andrew A. Kassof, Esq. 1444739 - letsent

Copies of Order mailed to counsel letter sent to Plaintiff State of Vermont and Defendant Atlantic Richfield Company and Defendant Chevron U.S.A.Inc. and Defendant CITGO Petroleum Corporation. 1444740 - letsent

Copies of Order mailed to counsel letter sent to Defendant Coastal Eagle Point Oil Company and Defendant Equilon Enterprises LLC and Defendant Exxon Mobil Corporation. 1444741 - letsent

Copies of Order mailed to counsel letter sent to Defendant Highlands Fuel Delivery, LLC and Defendant Ultramar Energy, Inc. and Defendant Valero Energy Corporation. 1444742 - letsent

Copies of Order mailed to counsel letter sent to party 1 Co-counsel and party 1 Co-counsel and party 5 Co-counsel and party 10 Co-counsel and party 23 Co-counsel. 1445036 - partyadd

Co-counsel, party 2. 1445037 - partyadd

Co-counsel, party 3. 1445038 - partyadd

Co-counsel, party 2. 1445039 - partyadd

Co-counsel, party 3. 1445040 - partyadd

Co-counsel, party 2. 1445041 - partyadd

Co-counsel, party 3. 1445042 - partyadd

Co-counsel, party 2. 1445043 - partyadd

Co-counsel, party 3. 1449262 - mprmemo

Party 4,26 filed response to MPR 13. 1449263 - mprstat

MPR 41 status changed to error. 1449282 - mprstat

MPR 40 status changed to error. 1449283 - mprmemo

Party 4,26 filed response to MPR 8. 1451366 - partyadd

Page 24 of 38VT Courts Online

P.C. 027

Co-counsel, party 2. 1451367 - partyadd

Co-counsel, party 3. 08/08/14 1445323 - disco

Discovery: Certificate of Service serving Motions for Admission Pro Hac Vice upon counsel, filed by Atty. Ryan. 1445348 - mprfile

MPR 42) Motion for Admission Pro Hac Vice - Nessa Horew filed by Defendant Sunoco, Inc. (R&M). Motion for Admission Pro Hac Vice - Nessa Horew. Documents filed: Motion for Admission Pro Hac Vice of; Nessa Horewitch Coppinger, Esq. with; copy of pro hac vice license.

1445354 - mprfile

MPR 43) Motion for Admission Pro Hac Vice - John S. Gut filed by Defendant Sunoco, Inc. (R&M). Motion for Admission Pro Hac Vice - John S. Gut. Documents filed: Motion for Admission Pro Hac Vice of; John S. Guttman, Jr. Esq; copy of; pro hac vice license. 1445355 - mprfile

MPR 44) Motion for Admission Pro Hac Vice - Daniel M. K filed by Defendant Sunoco, Inc. (R&M). Motion for Admission Pro Hac Vice - Daniel M. K. Documents filed: Motion for Admission Pro Hac Vice of; Daniel M. Krainin, Esq; copy of pro hac; vice license. 1445356 - mprjudge

MPR's 42-44: 42) Motion for Admission Pro Hac Vice - Nessa Horew; 43) Motion for Admission Pro Hac Vice - John S. Gut; 44) Motion for Admission Pro Hac Vice - Daniel M. K given to Judge Helen M. Toor. 08/11/14 1445538 - mpreo

Entry order re MPR 42) Motion for Admission Pro Hac Vice - Nessa Horew. M/Reaction Form. granted by HT. Order issued granting Nessa Horewitch Coppinger's pro hac vice appearance. 1445544 - mpreo

Entry order re MPR 43) Motion for Admission Pro Hac Vice - John S. Gut. M/Reaction Form. granted by HT. Order issued granting Atty. Daniel M. Krainin's pro hac vice appearance. 1445546 - mpreo

Entry order re MPR 44) Motion for Admission Pro Hac Vice - Daniel M. K. M/Reaction Form. granted by HT. Order issued granting John S. Guttman, Jr's pro hac vice appearance. 1445559 - partyadd

Co-counsel, party 23. 1445560 - partyadd

Co-counsel, party 23. 1445561 - partyadd

Co-counsel, party 23. 1445564 - letsent

Copies mailed to counsel letter sent to Plaintiff State of Vermont and Defendant Atlantic Richfield Company and Defendant BP Products

Page 25 of 38VT Courts Online

P.C. 028

North America Inc. and Defendant Chevron U.S.A.Inc. and Defendant CITGO Petroleum Corporation and Defendant CITG Refining and Chemicals Company, L.P. and Defendant Coastal Eagle Point Oil Company and Defendant ConocoPhillips Company and Defendant El Paso Merchant Energy-Petroleu Company and Defendant Equilon Enterprises LLC and Defendant Exxon Mobil Corporation and Defendant ExxonMobil Oil Corporation and Defendant Hess Corporation and Defendant Highlands Fuel Delivery, LLC and Defendant Irving Oil Limited and Defendant Mobil Corporation and Defendant Motiva Enerprises LLC and Defendant PDV Midwest Refining, LLC and Defendant Shell Oil Company and Defendant Shell Oil Products Company LLC and Defendant Shell Petroleum Inc. and Defendant Shell Trading(US) Company and Defendant Sunoco, Inc. (R&M) and Defendant TMR Company and Defendant Total Petrochemicals & Refining, USA, Inc. and Defendant TRMI-H LLC and Defendant Ultramar Energy, Inc. and Defendant Valero Energy Corporation and Defendant Valero Marketing and Supply Company and Defendant Valero Refining-Texas, L.P. and party 1 Co-counsel and party 1 Co-counsel and party 5 Co-counsel and party 10 Co-counsel and party 17 Co-counsel and party 19 Co-counsel and party 20 Co-counsel and party 21 Co-counsel and party 22 Co-counsel and party 24 Co-counsel and party 23 Co-counsel. 1445659 - mprfile

MPR 45) Motion for Admission of Counsel Pro Hac Vice filed by Defendant TRMI-H LLC. Motion for Admission of Counsel Pro Hac Vice. Documents filed: Motion for Admission of Counsel Pro Hac; Vice re: James J. Maher, Esq. and; Jeremiah J. Anderson, Esq. 08/12/14 1445738 - mprfile

MPR 46) Motion for Admission Pro Hac Vice - Robin Green filed by Plaintiff State of Vermont. Motion for Admission Pro Hac Vice - Robin Green. Documents filed: State of Vermont's Motion for Admission; Pro Hac Vice of Robin Greenwald, Esq; proposed Order. 1445740 - mprfile

MPR 47) Motion for Admission Pro Hac Vice of Benjamin K filed by Plaintiff State of Vermont. Motion for Admission Pro Hac Vice of Benjamin K. Documents filed: State of Vermont's Motion for Admission; Pro Hac Vice of Benjamin A. Krass, Esq; proposed Order. 1445741 - mprfile

MPR 48) Motion for Admission Pro Hac Vice of William Wa filed by Plaintiff State of Vermont. Motion for Admission Pro Hac Vice of William Wa. Documents filed: State of Vermont's Motion for Admission; Pro Hac Vice of William Walsh, Esq; proposed Order. 1445786 - mprjudge

MPR's 45-48: 45) Motion for Admission of Counsel Pro Hac Vice; 46) Motion for Admission Pro Hac Vice - Robin Green; 47) Motion for Admission Pro Hac Vice of Benjamin K; 48) Motion for Admission Pro Hac Vice of William Wa given to Judge Helen M. Toor. 1445932 - mpreo

Entry order re MPR 45) Motion for Admission of Counsel Pro Hac Vice. M/Reaction Form. granted by HT. James J. Maher and Jeremiah J. Anderson admitted pro hac vice. 1445933 - partyadd

Co-counsel, party 4. 1445934 - partyadd

Page 26 of 38VT Courts Online

P.C. 029

Co-counsel, party 26. 1445935 - partyadd

Co-counsel, party 4. 1445936 - partyadd

Co-counsel, party 26. 1445938 - mpreo

Entry order re MPR 46) Motion for Admission Pro Hac Vice - Robin Green. M/Reaction Form. granted by HT. Order issued admitting Robin L. Greenwald, Esq. pro hac vice. 1445939 - mpreo

Entry order re MPR 47) Motion for Admission Pro Hac Vice of Benjamin K. M/Reaction Form. granted by HT. Order issued admitting Benjamin A. Krass, Esq. pro hac vice. 1445940 - mpreo

Entry order re MPR 48) Motion for Admission Pro Hac Vice of William Wa. M/Reaction Form. granted by HT. Order issued admitting William Walsh, Esq. pro hac vice. 1445941 - partyadd

Co-counsel, party 1. 1445942 - partyadd

Co-counsel, party 1. 1445943 - partyadd

Co-counsel, party 1. 08/13/14 1446178 - couappr

Appearance entered by Harry R. Ryan III on behalf of Defendant Total Petrochemicals & Refining, USA, Inc. 1446287 - partyadd

Co-counsel, party 25. 1446291 - mprfile

MPR 49) Motion for Admission of Counsel Pro Hac Vice filed by Defendant Chevron U.S.A.Inc. and Defendant TRMI-H LLC. Motion for Admission of Counsel Pro Hac Vice. Documents filed: Motion for Admission of Counsel Pro Hac; Vice re: Robert E. Meadows, Esq. 08/18/14 1446453 - mpreo

Entry order re MPR 49) Motion for Admission of Counsel Pro Hac Vice. M/Reaction Form. granted by HT. Robert E. Meadows, Esq. admitted pro hac vice. 1446455 - partyadd

Co-counsel, party 4. 1446456 - partyadd

Co-counsel, party 26. 1446519 - mprmemo

Party 1 filed response to MPR 13. 08/19/14 1446837 - hrgheld

Page 27 of 38VT Courts Online

P.C. 030

Status Conference held. HT/TAPE. 1446838 - note

S. Kline, G. Boyles, R. McDougal present for plf; R. Stern present for Atlantic Richfield/BP; R. Fawley present for Cheveron/TRMI;P. Lynn present for Citgo; H. Ryan present for Total Petro/Hess/ Coastal/El Paso/Sunoco; M. Byrne present for Shell Co's; Equilon/Motivia/TMR; R. Berger present for Exxon Mobil(3); J. Sartore present for Highland Fuel/ Irving Oil; E. Miller present for Valero (3). 1446843 - entorder

Entry Order by Judge Helen M. Toor: Court discusses scheduling, motion to designate as complex action, and motion to dismiss. Oral motion made by Atty. Berger for oral argument on M. to Dismiss(which will be ripe in Sept.). Court to issue written order. 08/20/14 1447168 - mprfile

MPR 50) Motion for Admission Pro Hac Vice - Matthew Paw filed by Plaintiff State of Vermont. Motion for Admission Pro Hac Vice - Matthew Paw. Documents filed: Motion to Admit Counsel Pro Hac Vice of; Matthew F. Pawa, Esq; proposed Order. 1447169 - mprfile

MPR 51) Motion for Admission Pro Hac Vice - Robert Gord filed by Plaintiff State of Vermont. Motion for Admission Pro Hac Vice - Robert Gord. Documents filed: Motion for Admission Pro Hac Vice of; Robert Gordon, Esq; proposed Order. 08/21/14 1447172 - mprjudge

MPR's 50-51: 50) Motion for Admission Pro Hac Vice - Matthew Paw; 51) Motion for Admission Pro Hac Vice - Robert Gord given to Judge Helen M. Toor. 1447174 - mprmemo

Party 7,9 filed response to MPR 13. 1447175 - mprmemo

Party 13 filed response to MPR 13. 1447177 - mprmemo

Party 23 filed response to MPR 13. 1447260 - mprmemo

Party 25 filed response to MPR 13. 1447261 - mprfile

MPR 52) Motion (Total Petro) to Dismiss for Lack of Per filed by Defendant Total Petrochemicals & Refining, USA, Inc. Motion (Total Petro) to Dismiss for Lack of Per. Documents filed: Total Petrochemicals & Refining USA; Inc.'s Motion to Dismiss for Lack of; Personal Jurisdiction. 1447310 - couappr

Appearance entered by Pietro J. Lynn on behalf of Defendant CITG Refining and Chemicals Company, L.P. 1447314 - couappr

Appearance entered by Pietro J. Lynn on behalf of Defendant PDV

Page 28 of 38VT Courts Online

P.C. 031

Midwest Refining, LLC. 1447316 - partyadd

Co-counsel, party 6. 1447322 - partyadd

Co-counsel, party 18. 1447323 - partyadd

Co-counsel, party 6. 1447324 - partyadd

Co-counsel, party 18. 1447325 - partyadd

Co-counsel, party 6. 1447326 - partyadd

Co-counsel, party 18. 1447327 - partyadd

Co-counsel, party 6. 1447329 - partyadd

Co-counsel, party 18. 1447330 - partyadd

Co-counsel, party 6. 1447331 - partyadd

Co-counsel, party 18. 1447332 - mprmemo

Party 6,18 filed response to MPR 8,13. 1447341 - mprmemo

Party 27-30 filed response to MPR 13. 08/22/14 1447300 - mpreo

Entry order re MPR 50) Motion for Admission Pro Hac Vice - Matthew Paw. M/Reaction Form. granted by HT. Order granting pro hac vice admission to Matthew F. Pawa, Esq. issued. 1447301 - mpreo

Entry order re MPR 51) Motion for Admission Pro Hac Vice - Robert Gord. M/Reaction Form. granted by HT. Order granting pro hac vice admission to Robert J. Gordon, Esq. issued. 1447302 - partyadd

Co-counsel, party 1. 1447303 - partyadd

Co-counsel, party 1. 1447393 - couappr

Appearance entered by Geoffrey J. Vitt on behalf of Defendant ConocoPhillips Company. 08/26/14 1447766 - mprmemo

Party 11-12,16 filed response to MPR 13.

Page 29 of 38VT Courts Online

P.C. 032

08/29/14 1448634 - mprfile

MPR 53) Motion for Pro Hac Vice (Kraus & Thurlow) filed by Defendant ConocoPhillips Company. Motion for Pro Hac Vice (Kraus & Thurlow). Documents filed: Motion ForPro Hac Vice Admission of Alan; E. Kraus & Matthew D. Thurlow. 09/02/14 1448877 - mprjudge

MPR 53) Motion for Pro Hac Vice (Kraus & Thurlow) given to Judge Mary Miles Teachout. 09/03/14 1449141 - mprfile

MPR 54) Motion (Plf) for Extension of time to respond t filed by Plaintiff State of Vermont. Motion (Plf) for Extension of time to respond t. Documents filed: State of Vt's. Assented to Motion for; Extension of Time to Respond to Total; Petrochemicals & Refining USA, Inc.'s; Motion to Dismiss. 09/04/14 1449139 - mpreo

Entry order re MPR 53) Motion for Pro Hac Vice (Kraus & Thurlow). M/Reaction Form. granted by MT. 1449140 - partyadd

Co-counsel, party 8. 1449142 - partyadd

Co-counsel, party 8. 1449239 - mprjudge

MPR 54) Motion (Plf) for Extension of time to respond t given to Judge Mary Miles Teachout. 09/05/14 1449640 - mprfile

MPR 55) Motion (State) for Leave to file Preliminary Su filed by Plaintiff State of Vermont. Motion (State) for Leave to file Preliminary Su. Documents filed: State of Vermont's Motion for Leave to; File Preliminary Sur-Reply in; Opposition to Exxon's Motion to Dismiss; Sur-Reply. 1449711 - mprmemo

Party 1 filed response to MPR 13. 09/09/14 1449970 - mpreo

Entry order re MPR 54) Motion (Plf) for Extension of time to respond t. M/Reaction Form. granted by MT. Extended to 9/19/14. 1450385 - mprmemo

Party 11-12 filed response to MPR 55. 09/11/14 1450379 - mpreo

Entry order re MPR 8) Motion (CITGO) for Designation as a Complex Act. Decision/Order. denied by AMD. The motion is denied at this time. The parties or the presiding judge may renew the motion if it appears that a second change in judge is imminent due to rotation and would be detrimental to the just and efficient administration of the

Page 30 of 38VT Courts Online

P.C. 033

case. 1450381 - note

Copy of Judge Davenport's order denying CITGO's motion as a complex action scanned/e-mailed to local counsel. 1450554 - mprfile

MPR 56) Motion for Admission Pro Hac Vice - Amy Parker, filed by Defendant Total Petrochemicals & Refining, USA, Inc. Motion for Admission Pro Hac Vice - Amy Parker. Documents filed: Motion for Admission Pro Hac Vice of Amy; Parker, Esq; proposed Order. 1450557 - mprfile

MPR 57) Motion for Admission Pro Hac Vice of M. Coy Con filed by Defendant Total Petrochemicals & Refining, USA, Inc. Motion for Admission Pro Hac Vice of M. Coy Con. Documents filed: Motion for Admission Pro Hac Vice of M; Coy Connelly, Esq; proposed Order.

1450558 - mprfile

MPR 58) Motion for Admission Pro Hac Vice of Robert Aye filed by Defendant Total Petrochemicals & Refining, USA, Inc. Motion for Admission Pro Hac Vice of Robert Aye. Documents filed: Motion for Admission Pro Hac Vice of; Robert D. Ayers, Jr. Esq; proposed; Order.

1450559 - mprjudge

MPR's 56-58: 56) Motion for Admission Pro Hac Vice - Amy Parker; 57) Motion for Admission Pro Hac Vice of M. Coy Con; 58) Motion for Admission Pro Hac Vice of Robert Aye given to Judge Mary Miles Teachout. 09/12/14 1450383 - hrgset

Motion, Petition, Request set for 11/13/14 at 01:00 PM. TWO HOURS HAS BEEN SCHEDULED FOR ORAL ARGUMENT ON MOTIONS TO DISMISS. 09/17/14 1451095 - mpreo

Entry order re MPR 56) Motion for Admission Pro Hac Vice - Amy Parker. M/Reaction Form. granted by MT. Order issued granting Atty. Parker's Admission pro hac vice. 1451096 - mpreo

Entry order re MPR 57) Motion for Admission Pro Hac Vice of M. Coy Con. M/Reaction Form. granted by MT. Order issued granting Atty. Connelly's Admission pro hac vice. 1451097 - mpreo

Entry order re MPR 58) Motion for Admission Pro Hac Vice of Robert Aye. M/Reaction Form. granted by MT. Order issued granting Atty. Ayers' Admission pro hac vice. 1451166 - note

Uploaded log notes, and audio to eScribers as per request of Lynn, Lynn, & Blackman, P.C. for hearing 8/19/14. 09/19/14 1451930 - mprfile

MPR 59) Motion (CITGO) for Entry of Order Authorizing E filed by Defendant CITGO Petroleum Corporation and Defendant CITG Refining and Chemicals Company, L.P. and Defendant PDV Midwest Refining, LLC.

Page 31 of 38VT Courts Online

P.C. 034

Motion (CITGO) for Entry of Order Authorizing E. Documents filed: Joint Motion for Entry of Order; Authorizing Electronic Service; proposed Order. 1451943 - mprfile

MPR 60) Motion (Joint) for Entry of Order re: Use of MD filed by Defendant CITGO Petroleum Corporation and Defendant CITG Refining and Chemicals Company, L.P. and Defendant PDV Midwest Refining, LLC. Motion (Joint) for Entry of Order re: Use of MD. Documents filed: Joint Motion for Entry of Order re: Use; of MDL 1358 Discovery and Gap Filling; Discovery; proposed Order. 1451944 - mprfile

MPR 61) Motion (Dfts) Motion for Entry of a Case Manage filed by Defendant CITGO Petroleum Corporation and Defendant CITG Refining and Chemicals Company, L.P. and Defendant PDV Midwest Refining, LLC. Motion (Dfts) Motion for Entry of a Case Manage. Documents filed: Defendants' Motion for Entry of a Case; Management Order; proposed Case; Management Order. 1451954 - mprmemo

Party 1 filed response to MPR 52. 1453593 - document

4 documents filed by Attorney Gavin Boyles for party 31: Proposed Discovery and Case Management; Order; Memorandum in Support of State; of VT's proposed Discovery and Case; Management Order. 09/22/14 1451942 - mprjudge

MPR's 59,61: 59) Motion (CITGO) for Entry of Order Authorizing E; 61) Motion (Dfts) Motion for Entry of a Case Manage given to Judge Mary Miles Teachout. 10/03/14 1454185 - mprmemo

Party 1 filed response to MPR 61. 1454194 - mprmemo

Party 25 filed response to MPR 52. 10/07/14 1454768 - mprfile

MPR 62) Motion for Admission Pro Hac Vice filed by Defendant Shell Oil Company and Defendant Shell Oil Products Company LLC and Defendant Shell Petroleum Inc. and Defendant Shell Trading(US) Company. Motion for Admission Pro Hac Vice. Documents filed: Motion for Admission Pro Hac Vice re:; Richard Wallace, Jr; Peter Condron; Harman Cooper; Paul Pittman; Marie; Dennis; and John Kampman. 1454769 - mprjudge

MPR 62) Motion for Admission Pro Hac Vice given to Judge Mary Miles Teachout. 1454852 - document

3 documents filed by Attorney Pietro J. Lynn for parties 5-6: Defendants' Response to the State of; Vermont's Proposed Discovery and Case; Management Order. 10/08/14 1454840 - mpreo

Entry order re MPR 62) Motion for Admission Pro Hac Vice. M/Reaction

Page 32 of 38VT Courts Online

P.C. 035

Form. granted by MT. 1454843 - partyadd

Co-counsel, party 19. 1454846 - partyadd

Co-counsel, party 19. 1454847 - partyadd

Co-counsel, party 19. 1454848 - partyadd

Co-counsel, party 19. 1454849 - partyadd

Co-counsel, party 19. 1454851 - partyadd

Co-counsel, party 19. 11/06/14 1459719 - mprjudge

MPR's 55,60: 55) Motion (State) for Leave to file Preliminary Su; 60) Motion (Joint) for Entry of Order re: Use of MD given to Judge Mary Miles Teachout. 11/10/14 1460050 - mprfile

MPR 63) Motion to Withdraw as Attorney -Willie Epps filed by party 27 Co-counsel and party 28 Co-counsel and party 29 Co-counsel and party 30 Co-counsel. Motion to Withdraw as Attorney -Willie Epps. Documents filed: Request to Withdraw as counsel. 11/12/14 1460397 - mprjudge

MPR 63) Motion to Withdraw as Attorney -Willie Epps given to Judge Mary Miles Teachout. 11/13/14 1460629 - hrgheld

Motion, Petition, Request held. MT/CDVIDEO. 1460630 - note

S. Kline, G. Boyles, R. McDougal, R. Greenwald, C. Burke present for plf; R. Stern present for Atlantic R./BP; R. Fawley present for Chevron/TRMI; P. Lynn, L. Meyer present for Citgo(2); A. Parker, H. Ryan present for Total Petro/Hess/Coastal/El Paso/Sunoco; M. Bryne present for Shell Co.'s(4)/ Equilon/Motiva/TMR; S. Fewell, R. Berger D. Lender present for Exxon Mobil(3); J. Sartore present for Irving/Highland; E. Miller present for Valero(3); G. Vitt Conoco Phillips. for. 1460666 - entorder

Entry Order by Judge Mary Miles Teachout: Oral argument heard. Under advisement. 1460667 - cstat - status set to aua

Case status changed. 11/17/14 1461059 - mprfile

MPR 64) Motion for Admission of Counsel Pro Hac Vice (C filed by

Page 33 of 38VT Courts Online

P.C. 036

Defendant Chevron U.S.A.Inc. Motion for Admission of Counsel Pro Hac Vice (C. Documents filed: Motion for Admission of Counsel Pro Hac; Vice re: Charles Correll, Esq. 1461134 - mprjudge

MPR 64) Motion for Admission of Counsel Pro Hac Vice (C given to Judge Mary Miles Teachout. 11/18/14 1461189 - note

Uploaded Audio/Log Sheets to AvTranz as requested by R. Berger for 11/13/14 hearing. 11/20/14 1461711 - mpreo

Entry order re MPR 64) Motion for Admission of Counsel Pro Hac Vice (C. M/Reaction Form. granted by MT. 1461713 - partyadd

Co-counsel, party 4. 01/09/15 1469040 - mprfile

MPR 65) Motion for Admission Pro Hac Vice of Kelly Murr filed by Defendant Ultramar Energy, Inc. and Defendant Valero Energy Corporation and Defendant Valero Marketing and Supply Company and Defendant Valero Refining-Texas, L.P. Motion for Admission Pro Hac Vice of Kelly Murr. Documents filed: Motion for Admission Pro Hac Vice of; Kelly J.H. Murrie; proposed Order. 1469042 - mprfile

MPR 66) Motion for Admission Pro Hac Vice of Jennifer A filed by Defendant Ultramar Energy, Inc. and Defendant Valero Energy Corporation and Defendant Valero Marketing and Supply Company and Defendant Valero Refining-Texas, L.P. Motion for Admission Pro Hac Vice of Jennifer A. Documents filed: Motion for Admission Pro Hac Vice of; Jennifer L. Aspinall; proposed Order. 01/12/15 1469209 - mpreo

Entry order re MPR 65) Motion for Admission Pro Hac Vice of Kelly Murr. M/Reaction Form. granted by MT. Order issued re: Kelly J.H. Murrie, Esq. 1469210 - mpreo

Entry order re MPR 66) Motion for Admission Pro Hac Vice of Jennifer A. M/Reaction Form. granted by MT. Order issued re: Jennifer L. Aspinall, Esq. 1482822 - partyadd

Co-counsel, party 27. 1482823 - partyadd

Co-counsel, party 28. 1482825 - partyadd

Co-counsel, party 29. 1482827 - partyadd

Co-counsel, party 30. 1482828 - partyadd

Page 34 of 38VT Courts Online

P.C. 037

Co-counsel, party 27. 1482829 - partyadd

Co-counsel, party 28. 1482830 - partyadd

Co-counsel, party 29. 1482831 - partyadd

Co-counsel, party 30. 01/16/15 1470145 - mpreo

Entry order re MPR 52) Motion (Total Petro) to Dismiss for Lack of Per. Decision/Order. denied by MT. For the foregoing reasons, TPRI's motion to dismiss is denied. 1470146 - mpreo

Entry order re MPR 13) Motion (Exxon Mobil) to Dismiss. Decision/Order. Granted in part by MT. For the foregoing reasons, the motion to dismiss is granted as to pursuit of a claim for a generalized injury to the State waters as a whole, and otherwise denied at this time. The State is granted 60 days to file an amended complaint that complies sufficiently with VRCP 9(f) for purposes of Rule 12(b)(6). Pending motions regarding case management will not be addressed until the filing of an amended complaint and answer to the amended complaint. 1472075 - cstat - status set to atri

Case status changed. 02/02/15 1472442 - mprfile

MPR 67) Motion (State) to Permit Interlocutory Appeal filed by Plaintiff State of Vermont and party 1 Co-counsel and party 1 Co-counsel. Motion (State) to Permit Interlocutory Appeal. Documents filed: State of Vermont's Motion to Permit; Interlocutory Appeal Pursuant to VRAP; 5(b)(1). 1472446 - mprfile

MPR 68) Motion (State) to Toll Deadline to File Amended filed by Plaintiff State of Vermont and party 1 Co-counsel and party 1 Co-counsel. Motion (State) to Toll Deadline to File Amended. Documents filed: Motion to Toll Deadline to File Amended; Complaint.

1472454 - mprfile

MPR 69) Motion (Total Petrochemical) to Reconsider or, filed by Defendant Total Petrochemicals & Refining, USA, Inc. Motion (Total Petrochemical) to Reconsider or. Documents filed: Total Petrochemicals & Refining USA; Inc.'s Motion to Reconsider, or in the; alternative for Permission to Appeal; the Court's Order on its Motion to; Dismiss for Lack of Personal; Jurisdiction. 02/09/15 1473445 - mprmemo

Party 11-12 filed response to MPR 68. 02/12/15 1474031 - mprmemo

Party 31 filed response to MPR 68. 02/13/15

Page 35 of 38VT Courts Online

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1474485 - mprmemo

Party 31 filed response to MPR 69. 02/18/15 1474627 - mprmemo

Party 11-12 filed response to MPR 67. 02/20/15 1474835 - note

Copy of decision on Dfts. Exxon Mobil's Motion to Dismiss sent to Freggie Pittman returned undelivered by P.O; unable to forward. 02/24/15 1475367 - mprjudge

MPR's 67-68: 67) Motion (State) to Permit Interlocutory Appeal; 68) Motion (State) to Toll Deadline to File Amended given to Judge Mary Miles Teachout. 1475397 - mprstat

MPR 67 status changed to tickled. 1475398 - mpreo

Entry order re MPR 68) Motion (State) to Toll Deadline to File Amended. Decision/Order. granted by MT. The motion is granted on a temporary basis. The State is excused from the 60- day deadline for filing an amended complaint until further order of the court. The issue will be addressed at the time of ruling on the pending State's Motion to Permit an Interlocutory Appeal. 02/27/15 1475863 - mprmemo

Party 25 filed response to MPR 69. 03/04/15 1476289 - disco

Discovery: Certificate of Service serving Total's reply in support of Mo. to reconsider filed by Atty Ryan. 03/05/15 1476543 - mprmemo

Party 1 filed response to MPR 67. 03/06/15 1476544 - mprjudge

MPR's 67,69: 67) Motion (State) to Permit Interlocutory Appeal; 69) Motion (Total Petrochemical) to Reconsider or, given to Judge Mary Miles Teachout. 04/09/15 1482116 - mprfile

MPR 70) Motion (State) for Admission Pro Hac Vice filed by Plaintiff State of Vermont. Motion (State) for Admission Pro Hac Vice. Documents filed: State of Vermont's Motion for Admission; Pro Hac Vice of Wesley Kelman, Esq; proposed Order. 1482117 - mprjudge

MPR 70) Motion (State) for Admission Pro Hac Vice given to Judge Mary Miles Teachout. 1482123 - mpreo

Entry order re MPR 70) Motion (State) for Admission Pro Hac Vice.

Page 36 of 38VT Courts Online

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M/Reaction Form. granted by HT. Order appointing Wesley Kelman, Esq. pro hac vice granted; copy sent to parties. 1482124 - partyadd

Co-counsel, party 1. 04/17/15 1484497 - mpreo

Entry order re MPR 63) Motion to Withdraw as Attorney -Willie Epps. M/Reaction Form. granted by MT. 1484498 - couwith

Attorney Willie J. Epps Jr. withdraws. 1484499 - couwith

Attorney Willie J. Epps Jr. withdraws. 1484500 - couwith

Attorney Willie J. Epps Jr. withdraws. 1484501 - couwith

Attorney Willie J. Epps Jr. withdraws. 1484502 - partyrem

Party 87 party 27 removed:. 1484503 - partyrem

Party 88 party 28 removed:. 1484504 - partyrem

Party 89 party 29 removed:. 1484505 - partyrem

Party 90 party 30 removed:. 05/22/15 1492407 - mpreo

Entry order re MPR 67) Motion (State) to Permit Interlocutory Appeal. Decision/Order. Granted in part by MT. For the foregoing reasons, the State of Vermont's Motion for Permission to take an Interlocutory Appeal is granted with respect to the statute of limitations issues based on 12 V.S.A. Sec. 462 and on 10 V.S.A. Sec. 1390 arguments, and denied with respect to the issue of additional time to file a complaint that includes averments as to time and place. (See Decision for complete ruling). 1492410 - mpreo

Entry order re MPR 69) Motion (Total Petrochemical) to Reconsider or. Decision/Order. Denied in part by MT. For the foregoing reasons, TPRI's Motion for Reconsideration is denied, and TPRI's Motion in the Alternative for Permission to take an Interlocutory Appeal is granted. (See Decision for complete ruling). 1492560 - cstat - status set to iap

Case status changed. 05/26/15 1492802 - note

One accordion folder containing three files and certified copy of docket entries to date forwarded to Vermont Supreme Court; copy of cover letter sent to counsel. 05/27/15

Page 37 of 38VT Courts Online

P.C. 040

1492930 - note

Letter received from Vermont Supreme Court assigning Docket No. 2015-201 to this case re: interlocutory appeals. 05/29/15 1493252 - note

Letter received from Vermont Supreme Court assigning Docket No. 2015-201 to the Interlocutory Appeal filed by State of Vermont, and Docket No. 2015-204 to the Interlocutory Appeal filed by Total Petrochemicals & Refining USA, Inc. 06/12/15 1496109 - mprfile

MPR 71) Motion (Renewed)For Designation as Complex Acti filed by Defendant Exxon Mobil Corporation. Motion (Renewed)For Designation as Complex Acti. Documents filed: Renewed Motion for Designation as a; complex action, attachments. 06/22/15 1497373 - couappr

Appearance entered by Craig S. Nolan on behalf of Defendant Ultramar Energy, Inc. and Defendant Valero Energy Corporation and Defendant Valero Marketing and Supply Company and Defendant Valero Refining-Texas, L.P. 06/24/15 1499261 - note

Entry Order received from Vermont Supreme Court: The motion to dismiss the interlocutory appeal as improvidently granted, filed by Exxon, et al. is denied. Appl. State of VT's docketing statement. shall be filed within 10 days from the date of this order. (See order for complete decision). 1499264 - note

Entry Order received from Vermont Supreme Court re: motion for interloc. appeal filed by Total Petro; the Court accepts review of the appeal. Docketing statement. shall be filed within 10 days of this order. (See order for complete decision). 07/06/15 1501360 - mprmemo

Party 1 filed response to MPR 71. 07/15/15 1502485 - mprmemo

Party 11-12 filed response to MPR 71. 07/16/15 1502531 - mprjudge

MPR 71) Motion (Renewed)For Designation as Complex Acti given to Judge Mary Miles Teachout. ------------------------------------------------------------------------------

Page 38 of 38VT Courts Online

P.C. 041

STATE OF VERMONT

SUPERJOR COURT WASHINGTON UNIT

State of Vermont

vs.

Atlantic Richfield Company, (formerly known as Atlantic Richfield Delaware Corporation), individually, as successor-by-merger to Atlantic Richfield Company (a Pennsylvania corporation), and doing business as ARCO Products Company

BP Products North America Inc., (f/k/a Amoco Oil Company and The American Oil Company, individually and as successor-by-merger to BP Exploration and Oil, Inc. and as successor­in-interest to BP North America Inc.)

Chevron U.S.A. Inc., (f/k/a Gulf Oil Corporation, and d/b/a Chevron Products Company and Chevron Chemical Company)

CITGO Petroleum Corporation, (f/k/a Cities Service RMT Corporation)

CITGO Refining and Chemicals Company L.P., individually, and as successor-by-merger to Citgo Refining and Chemicals Company, Inc.

Coastal Eagle Point Oil Company ConocoPhillips Company, (f/k/a Phillips Petroleum

Company and d/b/a Phillips 66 Company, Phillips Chemical Company, and Phillips Oil Company), individually, as successor-by­merger to Conoco, Inc. and Tosco Corporation

El Paso Merchant Energy-Petroleum Company, (f/k/a Coastal Refining & Marketing,_ Inc., Coastal Derby Refining Company, Derby Refining Company and as Colorado Oil and Gas Corporation)

Equilon Enterprises LLC, (d/b/a Shell Oil Products US) individually, as successor-by-merger to Equiva Services LLC

Exxon Mobil Corporation, (f/k/a Exxon

- 1 -

CNIL DIVISION , DOCKETNO. 2/(()~(o~-14

<"'"'R"-1 . p

I c..n

(i)h~·J

P.C. 042

Corporation and d/b/a ExxonMobil Refining and Supply Company, Exxon Chemical U.S.A., and ExxonMobil Chemical Corporation)

ExxonMobil Oil Corporation, (f/k/a Mobi~ Oil Corporation, Socony Mobil Oil Company, Inc., and Socony Vacuum Oil Company, Incorporated)

Hess Corporation (f/k/a Amerada Hess Corporation) Highlands Fuel Delivery, LLC (f/k/a Irving Oil

Corporation) Irving Oil Limited Mobil Corporation Motiva Enterprises LLC, (f/k/a Star -Enterprises

LLC) PDV Midwest Refining, L.L.C. Shell Oil Company Shell Oil Products Company LLC, ( d/b/a Shell Oil

Products Company) Shell Petroleum, Inc. Shell Trading (US) Company, (individually, f/k/a

Equiva Trading Company and d/b/a Stusco) Sunoco, Inc. (R&M), (f/k/a Sun Company, Inc.

(R&M), Sun Refining and Marketing Company, and Sun Oil Company of Pennsylvania)

TMR Company, (f/k/a Texaco Refining and Marketing, Inc.), individually and as successor-by-merger to TRME Company (f/k/a Texaco Refining and Marketing (East), Inc.)

Total Petrochemicals & Refining USA, Inc., (f/k/a TOTAL Petrochemicals USA, Inc., Atofina Petrochemicals, Inc., Fina Oil and Chemical Company, and American Petrofina Company of Texas)

TRMI-H LLC (f/k/a TRMI Holdings Inc., Texaco Refining and Marketing Inc., Getty Refining and Marketing Company, and Getty Oil Company (Eastern Operations), Inc.)

Ultramar Energy, Inc. Valero Energy Corporation Valero Marketing and Supply Company Valero Refining-Texas, L.P. (f/k/a Valero Refining.

Company and Valero Refining Company­Texas)

- 2 -

P.C. 043

PLAINTIFF'S ORIGINAL COMPLAINT

Plaintiff, the State of Vermont, makes the following allegations against the Defendants

listed above.

I. SUMMARY OF THE CASE

1. The State of Vermont, by and through Attorney General William H. Sorrell, brings this

action to protect and remedy important State interests affected by widespread contamination of

the waters of the State with methyl tertiary butyl ether ("MTBE"), a chemical used in some

gasoline, and tert butyl alcohol ("TBA"), a degradation product of MTBE.

2. The waters of the State, whether located above or below ground, are limited, precious,

and invaluable public resources that are held in trust for the public benefit and that the State has

the authority and responsibility to protect, conserve, and manage, in the interest of present and

future generations. The State has a significant property interest in its waters and a quasi­

sovereign interest in protecting the quality of such waters. The contamination of State waters by

MTBE constitutes injury to the environment and to property held in public trust by the State for

which the State seeks damages in its capacity as parens patriae. The State also acts to protect its

own possessory interests in property.

3. Defendants' decision to use MTBE in gasoline, and their promotion, marketing,

distribution, and sale of such gasoline has created an unprecedented and widespread degradation

of, and future threat to, both the surface and ground waters of the State, including many public

and private drinking water supplies and wells. Compared to other gasoline constituents, MTBE

contaminates and spreads in water resources more quickly and resists removal and treatment,

thereby presenting a serious threat to the State's property and waters. MTBE and TBA have

- 3 -

P.C. 044

already contaminated numerous drinking water sources in the State and threaten to contaminate

more, as a result of normal and foreseen storage, purchase, and use of gasoline in the State.

4. MTBE can cause significant adverse health effects and, even at very low concentrations,

can render drinking water unpotable.

5. The defendants in this action are major oil and chemical companies that have refined

gasoline, manufactured MTBE, blended MTBE into gasoline, and/or supplied gasoline

containing MTBE to the State. The defendants include MTBE manufacturers and refiners and

major brand marketers of gasoline containing MTBE that was sold and supplied in the State.

Gasoline containing MTBE has damaged and continues to damage the State's waters and other

property, both that owned by the State and that owned by citizens of the State.

6. In addition to manufacturing and/or supplying MTBE or gasoline containing MTBE for

importation into and sale within the State, the defendants knowingly and willfully promoted,

marketed, and sold MTBE and gasoline and other petroleum products (collectively referred to as

"gasoline") containing MTBE, when they knew or reasonably should have known that MTBE

would be released into the environment and cause contamination of property, water, water

supplies, and wells throughout the State in violation of State law, would interfere with the State's

interest in protecting and preserving both surface and ground waters as well as both public and

private drinking water supplies, and would threaten public health and welfare and the

environment, as has occurred and is continuing to occur within the State.

7. The State alleges that the defendants are: liable for natural resource damages and

restoration under 10 V. S .A. § 13 90; liable for altering the quality of groundwater as prohibited

by 10 V.S.A. §1410; liable for reimbursing the State's expenditures related to MTBE

contamination; strictly liable for manufacturing and supplying a defective product; strictly

-4-

P.C. 045

liable for failing to provide adequate warnings in connection with that product; liable for

negligently causing damage to the State's property and waters and to the property of citizens of

the State; liable for creating a public nuisance; liable for creating a private nuisance; liable for

trespass upon the State's property and waters and property of citizens of the· State; in a

subgroup, liable as co-conspirators with certain other defendants; and liable for all resulting

damages, including punitive damages.

8. Plaintiff brings this action to recover compensatory damages and all other remedies,

including all costs to investigate, monitor, abate, contain,"prevent, treat, and remove MTBE and

TBA from the State's property and waters, property of the citizens of the State, and public and

private drinking water supplies, and to ensure that the responsible parties bear such expense,

rather than the State or its citizens and taxpayers. The State also seeks punitive damages to

reflect the aggravating circumstances caused by the defendants' willful, wanton, malicious,

oppressive, fraudulent, and/or outrageously reprehensible conduct, and harms caused to public

trust resources by defendants' intentional business choices.

II. PLAINTIFF

9. Plaintiff is the State of Vermont, as represented by and through the Attorney General of

the State of Vermont, with its principal office at 109 State Street, Montpelier, Vermont 05609-

1001.

10. The State brings this action as an exercise of its statutory authority to protect

groundwater, and its common law police power, which includes, but is not limited to, its power

to prevent pollution of the State's property and waters, to prevent nuisances, and to prevent and

abate hazards to public health, safety, welfare, and the environment.

- 5 -

P.C. 046

11. The State also brings this action in its parens patriae capacity for the benefit of the

citizens of the State, whose private property, groundwater, and/or water supplies have been

contaminated with MTBE; for the benefit of public water providers, whose property and/or

water supplies have been contaminated with MTBE; for the benefit of governmental

subdivisions, whose property and/or water supplies have been contaminated with MTBE and/or

who have spent funds associated with MTBE contamination; and for the benefit of all citizens of

the State who rely on public and private drinking water wells at their residences, schools,

churches, workplaces, recreational sites, and elsewhere. The State holds its groundwater

resources in trust for all citizens of the State, 10 V.S.A. § 1390(5), and all persons within the

State have a right to the beneficial use and enjoyment of groundwater free from unreasonable

interference by other persons. 10 V.S.A. § 1410(a)(4).

12. By bringing this suit, the State intends to occupy the field oflitigation for property­

related tort and public trust claims arising from MTBE contamination in the State of Vermont

and to recover damages arising from any and all MTBE contamination in the State, except for

any proceeds recovered in previous lawsuits for MTBE contamination of water supplies and

wells in the State. The State intends specifically to preempt any similar or related action filed

after the date of filing of this Complaint except, for example, private lawsuits alleging personal

injury or diminution in property value associated with MTBE.

13. The contamination of the State's property and waters by MTBE is an injury to the

environment and to property held in-trust by the State, for which the State seeks damages. The

State has a quasi-sovereign interest in protecting the quality of waters of the State.

- 6 -

P.C. 047

14. The contamination of the State's property and waters by MTBE is also an injury to

property the State owns in fee for which the State seeks damages. The State has an interest in

remediating the contamination of its property and in preventing future contamination.

15. In this Complaint, the temi "State's property and waters" refers to all property for which

the State seeks damages, including: public property the State holds in trust; property the State

owns in fee, property owned by citizens and others, surface water and groundwater in the State,

drinking water supplies in the State, and State-owned, public, and private drinking water wells.

III. DEFENDANTS

16. Defendants are petroleum industry corporations including manufacturers and promoters

ofMTBE and the refiners and marketers ofMTBE and/or gasoline containing MTBE. The

following defendants, at times relevant to this action, refined, marketed, and/ or otherwise

supplied (directly or indirectly) MTBE and/or gasoline containing MTBE that each such

defendant knew or should have known would be delivered into areas affecting the State's

property and waters, or otherwise did business in the State:

a. Atlantic Richfield Company, (formerly known as Atlantic Richfield Delaware

Corporation), individually, as successor-by-merger to Atlantic Richfield Company (a

Pennsylvania corporation), and doing business as ARCO Products Company), is a

Delaware corporation with its principal place of business at: 501 Westlake Park

Boulevard, Houston, Texas 77079. Atlantic Richfield Company may be served with

process through its registered agent, CT Corporation Company, 350 North St. Paul Street,

Suite 2900, Dallas, Texas 75201.

b. BP Products North America Inc., (f/k/a Amoco Oil Company and The

American Oil Company, individually and as successor-by-merger to BP Exploration and

- 7 -

P.C. 048

Oil, Inc. and as successor-in-interest to BP North America Inc.), is a Maryland corporation

with its principal place of business at: 501 Westlake Park Boulevard, Houston, Texas

77079. BP Products North America Inc. may be served with process through its

registered agent, Prentice-Hall Corporation System, 104 N. Main Street, Barre, Vermont

05634.

c. Chevron U.S.A. Inc., (f/k/a Gulf Oil Corporation, and d/b/a Chevron Products

Company and Chevron Chemical Company), is a Pennsylvania corporation with its

principal place of business at: 6001 Bollinger Canyon Road, San Ramon, California

94583. Chevron U.S.A. Inc. may be served with process through its registered agent,

Prentice-Hall Corporation System, 104 N. Main Street, Barre, Vermont 05634.

d. CITGO Petroleum Corporation, (f/k/a Cities Service RMT Corporation), is a

Delaware corporation with its principal place of business at: 1293, Eldridge Parkway,

Houston, Texas 77077. Citgo Petroleum Corporation may be served with process through

its registered agent, CT Corporation System, 400 Cornerstone Dr., #240, Williston,

Vermont 05495.

e. CITGO Refining and Chemicals Company L.P., individually, and as

successor-by-merger to Citgo Refining and Chemicals Company, Inc., is a Delaware

limited partnership with its principal place of business at: 6100 South Y a1e A venue, Tulsa,

Oklahoma 74136. Citgo Refining and Chemicals Company, LP may be served with

process through its registered agent, CT Corporation Company, 350 North St. Paul Street,

Suite 2900, Dallas, Texas 75201.

f. Coastal Eagle Point Oil Company is a Delaware corporation with its principal

place of business at: 1001 Louisiana Street, Suite 1000, Houston, Texas 77002. Coastal

- 8 -

P.C. 049

Eagle Point Oil Company may be served with process through its registered agent, CT

Corporation Company, 350 North St. Paul Street, Suite 2900, Dallas, Texas 75201.

g. ConocoPhillips Company, (f/k/a Phillips Petroleum Company and d/b/a Phillips

66 Company, Phillips Chemical Company, and Phillips Oil Company), individually, as

successor-by-merger to Conoco, Inc. and Tosco Corporation, is a Delaware corporation

with its principal place of business at: 600 North Dairy Ashford Road, Houston, Texas

77079. ConocoPhillips Company may be served with process through its registered agent,

U.S. Corporation Company, 159 State Street, Montpelier, Vermont 05602.

h. El Paso Merchant Energy-Petroleum Company, (f/k/a Coastq.l Refining &

Marketing, Inc., Coastal Derby Refining Company, Derby Refining Company and as

Colorado Oil and Gas Corporation), is a Delaware corporation with its principal place of

business at: 1001 Louisiana Street, Suite 1000, Houston, Texas 77002. El Paso Merchant

Energy-Petroleum Company may be served with process through its registered agent, CT

Corporation Company, 350 North St. Paul Street, Suite 2900, Dallas, Texas 75201.

1. Equilon Enterprises LLC, ( d/b/a Shell Oil Products US) individually, as

successor-by-merger to Equiva Services LLC, is a Delaware limited liability company

with its principal place of business at: 910 Louisiana, Houston, Texas 77002. Equilon

Enterprises LLC may be served with process through its registered agent, CT Corporation

System, 400 Cornerstone Dr., #240, Williston, Vermont 05495.

J. Exxon Mobil Corporation, (f/k/a Exxon Corporation and d/b/a ExxonMobil

Refining and Supply Company, Exxon Chemical U.S.A., and ExxonMobil Chemical

Corporation), is a New Jersey corporation with its principal place of business at: 5959 Las

Co_linas Boulevard, Irving, Texas 75039. Exxon Mobil Corporation may be served with

- 9 -

P.C. 050

process through its registered agent, Corporation Service Company, 104 N. Main Street,

Barre, Vermont 05641.

k. ExxonMobil Oil Corporation, (f/k!a Mobil Oil Corporation, Socony Mobil Oil

Company, Inc., and Socony Vacuum Oil Company, Incorporated), is a New York

corporation with its principal place of business at: 5959 Las Colinas Boulevard, Irving,

Texas 75039. ExxonMobil Oil Corporation may be served with process through its

registered agent, Prentice-Hall Corporation. System, 104 N. Main Street, Barre, Vermont

05634.

1. Hess Corporation (f/k/a Amerada Hess Corporation) is a Delaware

corporation with its principal place of business at: 1185 Avenue of the Americas, New

York, New York 10036. Hess Corporation may be served with process through its

registered agent, CT Corporation System, 400 Cornerstone Dr., #240, Williston, Vermont

05495.

m. Highlands Fuel Delivery, LLC (f/k/a Irving Oil Corporation) is a Maine

corporation with its principal place of business at 190 Commerce Way, Portsmouth, New

Hampshire 03801. Highlands Fuel Delivery, LLC may be served with process through the

Vermont Secretary of State.

n. Irving Oil Limited, is a Canadian corporation with its principal place of business

at 1 Germain Street, Saint John, E2L 4Vl NB Canada. Irving Oil Limited may be served

with process through the Vermont Secretary of State.

o. Mobil Corporation, is a Nevada corporation with its principal place of business

at: 800 BellStreet, Suite 1503, Houston, Texas 77002. Mobil Corporation may be served

- 10 -

P.C. 051

with process through the Office of the Secretary for Mobil Corporation, 5959 Las Colinas

Blvd., Irving, Texas 75039-2298.

· p. Motiva Enterprises LLC, (f/k/a Star Enterprises LLC), is a Delaware limited

liability company with its principal place of business at: OSP 25th Floor, 910 Louisiana

Street, Houston, Texas 77002. Motiva Enterprises LLC may be served with process

through its registered agent, CT Corporation System, 400 Cornerstone Dr., #240,

Williston, Vermont 05495.

q. PDV Midwest Refining, L.L.C., is a Delaware limited liability company with its

principal place of business at: 1293 Eldridge Parkway, Houston Texas 77077. PDV

Midwest Refining, LLC may be served with process through its registered agent, CT

Corporation Company, 350 North St. Paul Street, Suite 2900, Dallas, Texas 75201.

r. Shell Oil Company is a Delaware corporation with its principal place of business

at: 910 Louisiana Street, Houston, Texas 77002. Shell Oil Company may be served with

process through its registered agent, CT Corporation System, 400 Cornerstone Dr., #240,

Williston, Vermont 05495.

s. Shell Oil Products Company LLC, ( d/b/a Shell Oil Products Company), is a

Delaware limited liability company with its principal. place of business at: 910 Louisiana

Street, Houston, Texas 77002. Shell Oil Products Company, LLC may be served with

process through its registered agent, CT Corporation Company, 350 North St. Paul Street,

Suite 2900, Dallas, Texas 75201.

t. Shell Petroleum, Inc., is a Delaware corporation with its principal place of

business at: 910 Louisiana Street, Houston, Texas 77002. Shell Petroleum, Inc. may be

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P.C. 052

served with process through its registered agent, The Corporation Trust Company, 1209

Orange Street, Wilmington, Delaware 19801.

u. Shell Trading (US) Company, (individually, f/kJa Equiva Trading Company and

d/b/a Stusco ), is a Delaware corporation with its principal place of business at: 1000

Main, 12th Floor, Houston, Texas 77002. Shell Trading (US) Company may be served

with process through its registered agent, CT Corporation System, 400 Cornerstone Dr.,

#240, Williston, Vermont 05495.

v. Sunoco, Inc. (R&M), (f/kJa Sun Company, Inc. (R&M), Sun Refining and

Marketing Company, and Sun Oil Company of Pennsylvania), is a Pennsylvania

corporation with its principal place of business at: 1818 Market Street, Suite, 1500,

Philadelphia, Pennsylvania, 19103. Sunoco, Inc. (R&M) may be served with process

through its registered agent, Corporation Service Company, 104 N. Main St., Barre,

Vermont 05641.

w. TMR Company, (f/kJa Texaco Refining and Marketing, Inc.), individually and as

successor-by-merger to TRME CompanY: (f/k/a Texacq Refining and Marketing (East),

Inc.), is a Delaware corporation with its principal place of business at: 910 Louisiana,

Houston, Texas 77002. TMR Company may be served with process through its registered

agent, CT Corporation System, 400 Cornerstone Dr., #240, Williston, Vermont 05495.

x. Total Petrochemicals & Refining USA, Inc., (f/kJa TOTAL Petrochemicals

USA, Inc., Atofina Petrochemicals, Inc., Fina Oil and Chemical Company, and American

Petrofina Company of Texas), is a Delaware corporation with its principal place of

business at: 1201 Louisiana Street, Suite 1800, Houston, Texas 77002. Total

Petrochemicals & Refining USA, Inc. may be served with process through General

- 12 -

P.C. 053

Counsel for Total Petrochemicals & Refining USA, Inc., 1201 Louisiana Street, Suite

1800, Houston, Texas 77002.

y. TRMI-H LLC (f/k/a TRMI Holdings Inc., Texaco Refining and Marketing

Inc., Getty Refining and Marketing Company, and Getty Oil Company (Eastern

Operations), Inc.) is a Delaware corporation with its principal place of business at: 6001

Bollinger Canyon Road, San Ramon, California 94583. TRMI-H LLC may be served with

process through its registered agent Corporation Service Company, 23 3 8 West Royal

Palm Road, Suite J, Phoenix, Arizona 85021.

z. Ultramar Energy, Inc. is a Delaware corporation with its principal place of

business at: One Valero Way, San Antonio, Texas 78249. Ultramar Energy, Inc. may be

served with process through its registered agent CT Corporation System, 400 Cornerstone

Dr., #240, Williston, Vermont 05495.

aa. Valero Energy Corporation is a Delaware corporation with its principal place of

business at: One Valero Way, San Antonio, Texas 78429. Valero Energy Corporation

may be served with process through its registered agent CT Corporation Company, 350

North St. Paul Street, Suite 2900, Dallas, Texas 75201.

bb. Valero Marketing and Supply Company, is a Delaware corporation with its

principal place of business at: One Valero Way, San Antonio, Texas 78429. Valero

Marketing and Supply Company may be served with process through its registered agent,

CT Corporation System, 400 Cornerstone Dr., #240, Williston, Vermont 05495.

cc. Valero Refining-Texas, L.P. (f/k/a Valero Refining Company and Valero

Refining Company-Texas) is a Texas Limited Partnership with principal place of business

at: One Valero Way, San Antonio, Texas 78429. Valero Refining-Texas, L.P. may be

.:: 13 -

P.C. 054

served with process through its registered agent CT Corporation System, 350 North St.

Paul Street, Suite 2900, Dallas, Texas 75201.

17. The entities identified in paragraph 16 will be collectively referred to as "Defendants."

Defendants, among other things: (a) designed, manufactured, formulated, refined, set

specifications for, exchanged, promoted, marketed, sold, and/or otherwise supplied (directly or

indirectly) MTBE and/or gasoline containing MTBE that was delivered into areas affecting the

State's property and waters, such that releases ofMTBE contaminate and threaten the State's

property and waters; (b) acted with actual or constructive knowledge that blended gasoline

containing MTBE would be delivered into areas affecting the State's property and waters; (c) are

legally responsible for and committed each of the multiple tortious and wrongful acts alleged in

this Complaint; (d) participated in one or more joint enterprises to promote MTBE and/or

gasoline containing MTBE, despite the availability of reasonable alternatives and their actual or

constructive knowledge that the pollution alleged in this Complaint would be the inevitable

result of their conduct; and/or (e) in doing the tortious and wrongful acts alleged in this

Complaint, acted in the capacity of joint venturer, partner, agent; principal, successor in interest,

surviving corporation, controller, alter ego, co-conspirator, licensee, licensor, patent holder

and/or indemnitor of other Defendants.

18. To the extent any act or omission of any of the Defendants is alleged in this Complaint,

the officers, directors, agents, employees or representatives of each such defendant committed or

authorized each such act or omission, or failed to adequately supervise or properly control or

direct their employees while engaged in the management, direction, operation or control of the

affairs of such Defendants, and did so while acting within the scope of their duties, employment

or agency.

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P.C. 055

19. Any and all references to a Defendant or Defendants in this Complaint include any

predecessors, successors, parents, subsidiaries, affiliates, and divisions of the named Defendants.

IV. JURISDICTION AND VENUE

20. This Court has jurisdiction over the subject matter of this action pursuant to 4 V. S .A.

§ 31. In addition, this Court may exercise jurisdiction over Defendants because they either are or

at the relevant time were: authorized to do business in Vermont, registered with the Vermont

Secretary of State, transacting sufficient business with sufficient minimum contacts in Vermont,

or otherwise intentionally availing themselves of the Vermont market through the sale,

manufacturing, distribution, and/or processing of petroleum-related products in Vermont to

render the exercise of jurisdiction over Defendants by the Vermont courts consistent with

traditional notions of fair play and substantial justice.

21. Venue is proper in this Court because the principal situs of the State is in Montpelier, in

Washington County.

V. LIABILITY SUMMARY

22. The injuries to the State's property and waters caused and/or threatene~ by Defendants'

conduct as alleged in this Complaint constitute an unreasonable interference with, and alteration

of, limited, precious, and invaluable natural resources that the State holds in trust for the benefit

of the public and protects in its parens patriae capacity. The State's unique public trust interest

in protecting the quality of its waters constitutes a sufficient basis for the State to seek damages

for harm to and restoration of such waters. Defendants' conduct has also caused injuries to

property owned by the State. The State's exclusive possessory interest in such property

constitutes a sufficient basis for the State to seek damages for those injuries.

- 15 -

P.C. 056

23. Defendants knew, or reasonably should have known, that: (a) the gasoline distribution

and retail system contained leaking gasoline storage and delivery systems; (b) MTBE is more

readily released from gasoline storage and delivery systems than the constituents of conventional

gasoline; ( c) releases of MTBE into the environment would be an inevitable consequence of

placing MTBE into the stream of commerce; ( d) when released into the environment, MTBE

would travel great distances, mix easily with groundwater, resist biodegradation, and render

drinking water unsafe and/or non-potable; and (e) removing such contamination from property,

surface water, groundwater, drinking water supplies, and water wells would require significant

expense.

24. At all times relevant to this litigation, Defendants were or should have been aware that

MTBE contamination of groundwater and drinking water was inevitable due to MTBE's water­

seeking properties, recalcitrance to biodegradation and bioremediation, and the long and ongoing

history of nationwide gasoline spills, leaks, and other losses during distribution, sale, and use.

25. Despite their knowledge that MTBE posed a devastating risk of groundwater and

drinking water contamination, and despite the availability of reasonable alternatives, Defendants

failed to warn customers, retailers, regulators, or public officials, and failed to take any other

precautionary measures to prevent or mitigate such contamination. Instead, Defendants

promoted MTBE, and gasoline containing MTBE, as environmentally sound products

appropriate for widespread use. Moreover, certain Defendants engaged in separate and joint

activities to suppress, conceal, and/or discredit studies and other information regarding the

hazards of MTBE. Defendants' intentional business choices harmed the State.

26. In their Material Safety Data Sheets and other materials, Defendants provided

instructions regarding the use, handling, and storage of MTBE that affirmatively misrepresented

- 16 -

P.C. 057

or omitted the risks involved in those activities. Indeed, Defendants represented that gasoline

containing MTBE could be handled in the same fashion as conventional gasoline and required no

special measures to protect against, respond to, or mitigate suspected releases to the subsurface.

27. Defendants made such misrepresentations or material omissions although they had not

conducted adequate testing before they began adding MTBE to gasoline. Defendants did not

perform the standard toxicological studies before placing MTBE into the stream of commerce,

and they did not conduct long-term cancer studies, although research showed that MTBE caused

cancer in animals. Certain Defendants misled the EPA and convinced the Agency not to test

MTBE. In 1986, the federal Interagency Testing Committee ("ITC"), established pursuant to the

. Toxic Substances Control Act, recommended testing and review to assess MTBE's health and

environmental risks. Recognizing its high water solubility and persistence in groundwater, ITC

recommended chemical fate monitoring of MTBE to determine the risk MTBE poses to the

environment as well as medical testing ofMTBE. The oil industry, including certain

Defendants, mobilized to convince the EPA that additional testing of MTBE was not needed.

They downplayed the risks of groundwater contamination with MTBE and omitted material facts

known to Defendants at the time, even when government officials expressed concern over the

need to assess the potential for MTBE to cause groundwater contamination.

28. Certain Defendants also misled Congress when it was preparing to take action to address

the nation's smog problem. As a result of tremendous lobbying efforts by the industry, including

Defendants, Congress adopted the Reformulated Gasoline (RFG) Program as part of the 1990

Amendments to the Clean Air Act. According to the EPA, "The concept of reformulated

gasoline (RFG) was originally generated, developed and promoted by industry, not the

Environmental Protection Agency (EPA) or other parts of the federal government."

- 17 -

P.C. 058

29. At times relevant to this action:

a. Defendants manufactured, promoted, marketed, supplied, and/or sold MTBE for use

as a component of gasoline and/or refined, blended, promoted, marketed, supplied,

and/or sold gasoline containing MTBE.

b. Gasoline containing MTBE was delivered to commercial and consumer users such as

retail gasoline stations and other gasoline delivery systems in the State (and areas

affecting the State's property and waters).

c. Gasoline containing MTBE was released to the subsurface from retail gasoline

facilities, from other commercial and consumer uses, and from other sources at

locations throughout the State and/or in areas affecting the State's property and

waters. Such releases of gasoline containing MTBE occurred over time in varying

amounts at different locations.

d. MTBE, which takes time to migrate from release points through the subsurface to

locations where it may be detected in groundwater, has migrated and continues to

migrate from dispersed release points at or near the surface at retail gasoline facilities

and other sources and facilities within or near the State's boundaries, causing and

threatening to cause pollution, contamination, and substantial and continuing damage

to the State's property and waters, including drinking water, causing damage to the

State.

30. As a direct and proximate result of Defendants' negligent and intentional acts described

in this Complaint, MTBE was released into the environment, where it remains, causing and

threatening to cause widespread contamination of the State's property and waters and

endangering water supplies including drinking water supplies.

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P.C. 059

VI. FACTUAL ALLEGATIONS

A. The Contaminant at Issue - MTBE

31. MTBE is a synthetic chemical blended into some gasolines by some refiners at some

~imes since 1979. As used in this Complaint, "MTBE" refers not only to methyl tertiary butyl

ether, but also to the contaminants in and degradation byproducts ofMTBE, including TBA.

32. One way that MTBE contaminates the environment is through releases, leaks, overfills,

and spills from gasoline delivery facilities - including, but not limited to, gasoline stations,

gasoline storage, transfer, delivery, and dispensing systems ("gasoline delivery systems").

33. Another way that MTBE contaminates the environrrient is through releases, leaks,

overfills, and spills of gasoline associated with or incident to certain consumer activities, such as

use of snowmobiles, motorized watercraft, and lawnmowers and operation of junkyards and

vehicle maintenance and repair facilities, which result in releases of MTBE into the State's

property and waters.

34. As a result of its physical characteristics, MTBE finds pathways for release into the

environment from gasoline delivery systems and is more readily released from such systems than

conventional gasoline components.

35. Once released to the environment, MTBE's unique characteristics cause extensive

environmental contamination and a corresponding threat to the public health and welfare beyond

that caused by gasoline that does not contain MTBE. In particular, the fate and transport of

MTBE 'in the subsurface differs significantly from that of gasoline constituents that have

historically been of environmental and/or toxicological concern, specifically the "BTEX

compounds" (benzene, toluene, ethylbenzene, and xylene).

- 19 -

P.C. 060

36. In groundwater, MTBE moves freely at approximately the rate of the water's movement,

unlike BTEX compounds, which tend to adhere to soil and float on the surface of water. This

makes MTBE contamination more difficult to remediate than contamination involving only

BTEX compounds.

37. MTBE is also more persistent than BTEX compounds because it does not readily

biodegrade in groundwater. Because of its recalcitrance, plumes of MTBE can persist in

underground aquifers for decades, far longer than other gasoline components. Once an MTBE

plume reaches a well, it continues to contaminate the water drawn from that well. As a result,

MTBE is more difficult and expensive to remove from groundwater than BTEX compounds.

38. In sum, when MTBE is released into the environment, it migrates farther and faster

through soil and groundwater, penetrates deeply into aquifers, resists biodegradation, and results

in persistent contamination that is very costly to address. As a result of these properties, MTBE

has contaminated, and continues to contaminate and threaten, the State's property and waters.

3 9. Not all of the MTBE contamination of water resources in the State can be traced to a

specific source or release.

40. MTBE is a fungible product: MTBE made and/or used by one Defendant is chemically

identical to MTBE made and/or used by any other Defendant. Once blended into gasoline, it is

impossible, based on physical characteristics,.to identify the manufacturer of the MTBE.

41. Once MTBE leaves the refinery and enters the stream of commerce, it is impossible,

based on physical characteristics, to identify the refiner of the gasoline containing it. In addition,

gasoline containing MTBE from various refiners is commingled during transmission from

refineries to distribution centers. The gasoline at any particular service station is, therefore, an

intentionally blended product made up of gasoline from many different refiners. Thus, a

- 20 -

P.C. 061

subsurface plume, even if released from a single identifiable tank, pipeline, or vessel, is the

product of mixed batches of gasoline originating from different refiners. It is impossible, based

on any physical characteristics, to identify what portions of commingled gasoline containing

MTBE were refined, manufactured, and/or supplied by any particular defendant.

42. Once released into the environment, MTBE lacks characteristics or a chemical signature

that would enable identification of the refinery or company that manufactured the product. Even

when a source of a plume of MTBE - such as a leaking underground storage tank 1s

identified, the identity of the manufacturer of the MTBE and refiner of the offending gasoline

generally cannot be determined due to the commingled and fungible nature of the products.

Identification is further complicated by the Defendants' practice of trading, bartering, or

otherwise exchanging product.

43. Federal and other studies link MTBE to a variety of adverse health effects. MTBE is a

known animal carcinogen and a possible human carcinogen.

44. In addition to the health and environmental risks MTBE poses in drinking water supplies,

MTBE imparts a turpentine odor and chemical taste onto previously potable water. MTBE' s

taste and odor alone can render water unfit for human consumption.

45. TBA also threatens and contaminates the waters of the State.

46. TBA, a chemical used to produce MTBE and sometimes blended into gasoline, is also an

intermediate product of MTBE biodegradation. As a result, TBA may appear wherever there is

MTBE contamination.

47. TBA has the same characteristics as MTBE that make it a persistent and pernicious

groundwater contaminant including high solubility (even higher than MTBE) and resistance to

biodegradation. In addition, TBA is highly toxic when inhaled and is irritating to the skin, eyes,

- 21 -

P.C. 062

and mucous membranes. Some animal studies link TBA to cancer and kidney and thyroid

tumors.

48. TBA contamination is even more expensive to clean up than MTBE. In fact, the

presence of TBA in water being treated for MTBE may generate additional compounds of health

and environmental concern, limiting the usefulness of these technologies and further increasing

costs.

49. Defendants failed to warn the State, regulators, and the general public that Defendants

often added TBA to their gasoline and that MTBE breaks down into TBA. Further, Defendants

failed to warn the State of the need to test its water supplies for contamination by TBA.

B. History of MTBE Use

50. Oil companies began blending MTBE into gasoline in the late 1970s. Initially used as an

octane enhancer, MTBE was used throughout the 1980s at low concentrations in some gasoline

by some refiners, primarily in high-octane grades. MTBE was not the only viable option to

achieve higher octane in gasoline. Rather, its use reflected Defendants' intentional business

decision to find a profitable use for a waste byproduct of the refining process.

51. Prior to 1990, Congress was preparing to take action to address the nation's smog

problem.

52. During this timeframe, the oil industry, including Defendants, became concerned that

Congress might consider requiring alternative non-petroleum based fuels.

53. As a result of tremendous lobbying efforts by the industry, including Defendants,

Congress adopted the Reformulated Gasoline Program as part of the 1990 Amendments to the

Clean Air Act. According to the EPA, "The concept of reformulated gasoline (RFG) was

- 22-

P.C. 063

originally generated, developed and promoted by industry, not the Environmental Protection

Agency (EPA) or other parts of the federal government."

54. Congress mandated the use ofRFG containing at least 2% oxygen by weight in those

areas of the country with the worst ozone or smog problems. The 1990 Amendments authorized

the EPA to designate certain areas of the country to participate in RFG programs.

55. In 1992, in conjunction with the Clean Air Act, the EPA initiated the Oxygenated Fuel

Program ("Oxyfuel Program"), which required at least 2. 7% oxygen by weight in gasoline in

certain metropolitan areas to reduce carbon monoxide emissions during the fall and winter

months.

56. The Clean Air Act's RFG program required the use of an oxygenate in certain gasoline

beginning in 1995, but it did not require the oxygenate to be MTBE. Rather, MTBE became

Defendants' "oxygenate of choice" because it was the most inexpensive oxygenate to produce

and offered Defendants the highest profit margin of all the oxygenates available. Defendants

could manufacture MTBE from their already available refinery by-products and therefore were

not forced to purchase a different oxygenate, such as ethanol, from a third party.

57. National annual production figures for MTBE reflect the oil industry's decision to make

MTBE its oxygenate of choice: MTBE production increased from 1.5 million barrels in 1980 to

75 million barrels in 1998.

58. Much of the gasoline sold in air quality non-attainment areas under the RPG Program

exceeded that Program's minimum 2% or 2.7% oxygenate requirements, and MTBE composed

up to 15% of every gallon of gasoline used in those areas. MTBE composed a significant amount

of gasoline even in areas that did not participate in the RPG Program.

- 23 -

P.C. 064

59. Defendants started shipping high MTBE-content gasoline for sale in certain metropolitan

areas in 1992 as part of the Oxyfuel Program.

60. In or around January 1995, Defendants started placing gasoline containing higher levels

of MTBE into the stream of commerce when moved by market factors and financial

considerations to do so. Gas station owners and pump operators, whom Defendants did not warn

about the properties of MTBE or gasoline containing MTBE, started selling Defendants' gasoline

with greatly elevated concentrations of MTBE.

61. At its peak, most if not all gasoline supplied to the RFG areas contained high

concentrations (11 to 15 percent) of MTBE. In addition, gasoline containing elevated

concentrations of MTBE was often sold at other locations, including Vermont, at the discretion of

the oil industry, including Defendants.

62. In making MTBE their oxygenate of choice, Defendants decided to forgo safer

oxygenates, such as ethanol. In fact, belatedly, some gasoline sellers subsequently publicly

acknowledged that MTBE is neither environmentally safe nor necessary. Getty Marketing, for

example, placed full page ads in the New York Times on October 13, 1999 stating:

Protecting our water supply means making a commitment to doing business in environmentally-friendly ways. That's what we're doing at Getty. We have replaced MTBE with ethanol in our gasoline because it helps clean the air without harming our drinking water.

63. Safer, more environmentally sound alternatives were at all times available and known to

Defendants.

64. Defendants, not the State, chose to use MTBE in gasoline in Vermont.

- 24 -

P.C. 065

65. As a result of Defendants' intentional business choices, MTBE was widely used

throughout the United States, including Vermont, and it now widely contaminates the State's

property and waters.

66. In addition, combustion of gasoline containing MTBE in car engines actually increases

exhaust emissions of formaldehyde, nitrous oxide and other toxic chemicals including MTBE

itself.

C. Defendants Were Well Aware ofMTBE's Threat to Groundwater

67. At times relevant to this litigation, Defendants were aware that, on a nationwide level,

gasoline was leaking from multiple sources, including underground storage tanks ("USTs").

Industry reports, Congressional testimony, and EPA concerns reflect Defendants' knowledge that

the systems used for shipping, storing, pumping, and using gasoline involved leaks and spillages

at all links in the gasoline distribution chain.

68. Attimes relevant to this litigation, Defendants were or should have been aware that

thousands of gallons of gasoline entered the soil annually from gasoline-dispensing stations due

to UST releases and leaks, consumer and jobber overfills, and mishandling.

69. At times relevant to this litigation, Defendants were or· should have been aware that

additional quantities of MTBE reached the soil and groundwater through vaporization from

USTs, and that such vaporization and other small releases occurred even when a tank is

considered to have tested tight.

70. Defendants also knew or should have known that releases, leaks, overfills, and spills of

gasoline associated with or incident to certain consumer activities, such as use of snowmobiles,

motorized watercraft, and lawnmowers, and operation of junkyards and vehicle maintenance and

repair facilities, would result in releases of MTBE into waters of the State.

- 25 _.

P.C. 066

71. At times relevant to this litigation, Defendants were or should have been aware that

MTBE contamination of groundwater was inevitable. MTBE' s water-seeking properties,

recalcitrance to biodegradation and bioremediation, and the long and ongoing history of

nationwide gasoline spills, leaks, and other losses during distribution, sale, and use guaranteed

substantial and repeated releases of MTBE-containing gasoline into the environment.

72. For example, the American Petroleum institute ("API"), a trade association representing

the domestic petroleum industry, including certain Defendants, in a broad range of topics,

formed a Toxicology Committee in or around 1980. The Toxicology. Committee included

representatives from Exxon, Mobil, Shell, Atlantic Richfield Company ("ARCO"), and Chevron

Te~aco, among others.

73. API's Toxicology Committee meeting minutes make plain that committee members

shared information and repeatedly discussed MTBE's propensity to contaminate groundwater.

The Committee specifically acknowledged the need for certain toxicological information due to

MTBE's propensity to contaminate groundwater and thetesulting likelihood of extensive

ingestion of MTBE through drinking water.

74. Despite early knowledge and a shared recognition of the need to do long-term, low-level

ingestion studies on the effects of MTBE, Defendants postponed such studies for decades and

never completed such a study during the relevant time period.

75'. Defendants possess and have always possessed vastly superior knowledge, resources,

experience and other advantages, in comparison to anyone or any agency, concerning the

manufacture, distribution, nature, and properties of gasoline in general and MTBE in particular.

76. By virtue of their tremendous economic power and analytical resources, including the

employment of scientists such as hydrogeologists, chemists, engineers, and toxicologists,

- 26 -

P.C. 067

Defendants have at all relevant times been in a position to know, identify, and confirm the threat

MTBE posed and poses to groundwater.

77. In addition, by virtue of this superior knowledge, and/or by virtue of the Defendants'

p~ial and incorrect statements regarding the nature and impacts ofMTBE, Defendants had a

duty to disclose the truth and to act in accordance with the truth about MTBE.

78. Defendants knew or should have known of the impact ofMTBE and its contamination of

water prior to their. widespread introduction of MTBE into the nation's gasoline system.

79. In or around October 1980, certain Defendants learned of a serious incident ofMTBE

groundwater contamination in Rockaway, New Jersey, which substantiated the threat that MTBE

poses to drinking water supplies. Approximately 4,000 residents of Rockaway tasted MTBE or

DIPE (another ether) in water from a municipal well. This evidence of contamination prompted

leading oil industry insiders to further investigate the groundwater threat posed by MTBE.

80. In April 1983, a serious MTBE incident in Jacksonville, Maryland came to public

attention. Spills or leaks that occurred at least two years earlier at two different gas stations, one

owned by what is now ExxonMobil, created a large underground reservoir of MTBE that fouled

the domestic wells of local residents and stalled a planned housing project.

81. Certain Defendants were also aware of two MTBE groundwater contamination events in

Liberty, New York and East Patchogue, New York, both of which preceded by several years the

introduction of gasoline with higher concentrations of MTBE and presaged the now widespread

calamity.

82. At the East Patchogue site, spilled gasoline left over from the operation of a filling station

whose underground storage tanks had been dug up and removed in 1988 sent a plume of MTBE

into Long Island's sole source aquifer. The MTBE plume was detected when the water from a

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P.C. 068

private well 4,000 feet from the old filling station site was rendered undrinkable with 350 ppb of

MTBE. Although trace levels ofBTEX were eventually found in neighboring wells, that did not

happen until the MTBE levels had reached the astounding level of 7,600 ppb.

83. A decade after the spill in East Patchogue, government officials were still tracking the

MTBE plume through the aquifer thousands of feet from the site. In contrast, BTEX compounds

were found concentrated in the soils and water much closer to the spill site, and the mass of these

compounds was observed to be steadily decreasing.

84. The Liberty incident started sometime before August 1990, which is when state health

officials detected MTBE in the public water supply.

85. In December 1992, MTBE was again found in Liberty's water at concentrations

approximately three times higher than the New York State Department of Health drinking water

standard of 50 ppb at the time.

86. In 1986, Peter Garrett and Marcel Moreau of the Maine Department of Environmental

Protection drafted a paper titled "Methyl Tertiary Butyl Ether as a Ground Water Contaminant"

("the Garrett Report"). 1 The Garrett Report described approximately 30 wells in Maine that

were contaminated with MTBE. The authors explained that as a result of their experience

dealing with the contamination, they learned that: (a) groundwater contaminated with MTBE is

difficult to remediate, (b) MTBE is more soluble than the other constituents of gasoline and

therefore a plume of MTBE in groundwater will be more extensive than the plume of the other

gasoline components, and ( c) MTBE has a distressing "terpene-like" odor in low concentrations.

1 Peter Garrett, Marcel Moreau & J.D. Lowry, "MTBE as a Ground Water Contaminant," in NWW A/API Conference on Petroleum Hydrocarbons and Organic Chemicals in Ground Water - Prevention, Detection, and Restoration, Houston, TX, November 12-14, 1986 [Proceedings]: Dublin, OH, National Water Well Ass'n, pp. 227-238.

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P.C. 069

87. As a result ofMTBE's characteristics, the Garrett Report's authors recommended that

MTBE be banned as a gasoline additive or at least be stored in double-contained facilities. The

authors planned to present their paper and have it published in the proceedings of the "Petroleum

Hydrocarbons and Organic Chemicals in Ground Water Conference" sponsored by the National

Well Water Association and the API in November of 1986.

88. As soon as the existence of the Garrett Report was known, even before it was published,

the draft was widely circulated throughout the oil industry. Oil industry representatives,

including many of the Defendants, joined forces to pressure the authors to radically revise their

negative conclusions and recommendations about MTBE. Even after succeeding in having the

report's language softened, Defendants attempted to discredit the report.

89. Arco Chemical, which was then a part of ARCO, aggressively challenged the initial draft

of the Garrett Report before its presentation. Arco Chemical provided "data that indicated that

many of their theories were incorrect" to the authors of the paper in an attempt to change their

opinions. Despite Arco Chemical's efforts, however, the authors concluded that "MTBE

presented an environmental hazard different to other gasoline components" and proceeded with

their presentation of the paper to the National Well Water Association in November of 1986.

90. On December 23, 1986, a staff member to API's Groundwater Technical Task Force

("GWTTF") forwarded the Garrett Report to members of the GWTTF, including representatives

of Shell and Exxon. API asked these individuals to review the Garrett Report and provide

comments and critiques. API asked for responses because the article was "of possible grave

concern to the oxygenate producers."

91. The comments from the G WTTF members culminated in a letter from API to the

National Well Water Assodation, which was to present the paper. The letter stated in part:

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P.C. 070

The authors' "recommendations" that MTBE . . . be either banned as gasoline additives or require double-lined storage is clearly a policy statement and not an objective credible scientific conclusion. Further, data presented in this paper as well as those generated by ongoing API research indicate that such a policy is reactionary, unwarranted and counter-productive.

92. But the API letter to the National Well Water Association in no way refuted the Garrett

Report's conclusions regarding MTBE's solubility, MTBE's low odor and taste threshold, the

fact that MTBE could travel faster in groundwater than the other gasoline constituents, or the

conclusion that MTBE was difficult to remediate. These issues were not even addressed.

93. BP Corporation (then known as "Amoco") publicly denounced the Garrett Report, stating

flatly that the report "isn't true."

94. Privately, however, Defendants acknowledged that the major findings of the Garrett

Report were correct. For instance, while the oil companies, via the G WTTF, attacked the

authors of the Garrett Report, saying the paper had a "general lack of technical data to support .

the rather strong policy statements," they admitted internally that the authors might in fact be

correct. Arco Chemical, in communications to others within the oil industry, admitted that it had

no data to refute the Garrett Report's conclusions. For example, a letter dated February 4, 1987,

stated, "we don't have any data to refute comments made in the paper that MTBE may spread

farther in a plume or may be more difficult to remove/clean up than other gasoline constituents."

95. On or around May 6, 1987, Mobil's laboratory prepared and circulated a memo based on

a compilation of data on MTBE contamination of groundwater in New York State and elsewhere

in the region, including laboratory analyses verifying the presence ofMTBE in water samples

from three wells in Harrison, New York and four wells in.Port Jefferson, New York. In its

report, Mobil's laboratory stated: "We agree that MTBE in gasoline will dissolve in groundwater

at a faster rate than any gasoline hydrocarbon, including benzene." The report further stated that

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P.C. 071

"[b ]ecause of its more frequent occurrence, even when other hydrocarbons are not found, we feel

it is important for you to be aware of MTBE. From an environmental and engineering

standpoint, you may need to be informed of its presence to assist you in responding effectively to

regulatory and remedial requirements."

96. Similar communications circulated .among officials at Chevron Texaco (Chevron). A

1987 memo, widely circulated within the company, stated:

Two considerations impact MTBE. One is potential health risk, and. the second is increased solubility over normally regulated constituents of interest, i.e. benzene, toluene and xylene (BTX).

MTBE is significantly more soluble in water than BTX. Consequently, the dissolved "halo" from a leak containing MTBE can be expected to extend farther and spread faster than a gasoline leak that does not include MTBE as one of its constituents.

Further compounding the problem of increased solubility, MTBE is more difficult to remove from groundwater using current technology (air stripping or carbon adsorption). Because of its lower volatility, MTBE requires more than double the air stripping capacity to reach a 95 percent reduction. Removal using carbon adsorption is even worse. MTBE breaks through activated carbon four times faster than BTX.

97. In 1992, Shell employees C. C. Stanley, W.G. Rixey, and C.Y. Chiang created a

document titled "MTB.E WHITE PAPER-The Impact ofMTBE on Groundwater." They

intended to circulate among the employees of various Shell companies a report about the

movement of MTBE in groundwater.

98. According to Shell's MTBE White Paper, MTBE is nearly 25 times more soluble than

benzene and, therefore, MTBE' s plumes would move faster and farther than benzene plumes

emanating from a gasoline spill. Further, the White Paper indicated that MTBE would not

biodegrade in the subsurface environment. Finally, the document confirmed that MTBE has a

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P.C. 072

low odor ·and taste threshold and, further, that "at many locations odor and taste criteria may

determine-clean-up levels."

99. Shell's MTBE White Paper further stated:

MTBE has had an impact on groundwater management at only a few Shell marketing terminals and service stations to date. However, as the usage of this oxygenate begins to increase, a stringent clean-up criteria for MTBE will become adopted in more states, we should anticipate increased concerns over how its release to groundwater is managed.

This paper was never published outside of Shell.

100. A June 1997 Shell document titled "Summary of Current MTBE Issues and Status"

stated:

MTBE is relatively quite soluble in water (compared to other components in gasoline, like BTEX), and it moves essentially with the ground water, thus MTBE tends to "lead the plume" whenever there is a gasoline spill or leak. MTBE also has a very low biodegradation potential, which makes it more difficult to remove from ground water than other gasoline components such as BTEX.

D. Defendants Concealed the Risks Associated with MTBE

101. Defendants added MTBE to gasoline even though no long-term cancer studies had been

undertaken. Existing studies showed MTBE causes cancer in animals. Although it is and was at

all relevant times common practice to conduct toxicological tests before introducing a widely-

used chemical like MTBE, Defendants did not perform any such tests to determine MTBE' s

effects before placing it into the stream of ~ommerce. Instead, certain Defendants attempted to

convince the EPA that health testing was not needed. Thus, Defendants exposed millions of

Americans to potential harm without warning of MTBE' s potential health risks.

102. Despite their superior knowledge of the groundwater threat MTBE posed, certain

Defendants, beginning in the early 1980s, formed various formal and informal task-forces and

committees for the purpose of concealing MTBE's actual threat, facilitating the Defendants'

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P.C. 073

MTBE use without regard to its impact on the State, and convincing the public and regulators

that increasing concentrations ofMTBE in gasoline was desirable. These joint task-forces and

committees were formed under the auspices of trade organizations such as the API and the

Oxygenated Fuels Association ("OFA"). Certain Defendants, as members of these joint task

forces and committees, conspired to conceal the risk of MTBE contamination of groundwater

and used MTBE, thereby placing corporate profits above known-but-concealed harm to the

environment and the State. Certain Defendants manufactured and distributed MTBE with actual

knowledge ofMTBE's defects and with actual knowledge that MTBE would cause harm in

groundwater and production wells, and took affirmative steps to conceal those effects.

103. In 1986, the federal Interagency Testing Committee ("ITC"), established pursuant to the

Toxic Substances Control Act, recommended testing and review to assess MTBE's health and

environmental risks.2 The ITC characterized MTBE as having relatively high water solubility,

and stated that MTBE' s persistence in groundwater following spills was unknown but that it was

likely not to be readily biodegradable. The ITC recommended chemical fate monitoring of

MTBE to determine the risk MTBE poses to the environment. The ITC also recommended

additional medical testing ofMTBE and invited written comments. The 1986 Notice credited

the Dynamac Corporation for supplying the government with MTBE information.

104. The oil industry, including certain Defendants, mobilized to convince the EPA that

additional testing ofMTBE was not needed.

105. On or about December 12, 1986, ARCO, speaking on behalf of and/or with the approval

of certain Defendants, responded to the 1986 Notice in an effort to derail further testing of

2 Nineteenth Report of the ITC to the Administrator, Receipt and Request for Comments Regarding Priority List of Chemicals, 51 Fed. Rep. 220 (1986) (the "1986 Notice").

- 33 -

P.C. 074

MTBE. ARCO's comments included a critique of the Dynamac Corporation's information

review ofMTBE, on which the ITC had relied. ARCO stated that its "critique of.the

CRCS/Dynamac report revealed that some erroneous assumptions had been made that cause the

hazards of MTBE to be seriously overestimated." In further comments to the EPA, ARCO stated

the following:

Characteristics - Moderate water solubility is reported. However, an ARCO Technical Bulletin states that 'MTBE is only slightly soluble in water ... '

***

The CRSC/Dynamac report states that potential environmental exposure is 'high.' This conclusion is not supported by the available information.

***

***

Exposure from accidental spills of MTBE could occur, but should be regarded as a minimal possibility. The closed nature of the manufacturing and transportation process reduces worker exposure and product loss. Training and safety programs also lower the possibility of accidental spills. Many current programs at EPA and industry are underway to monitor and reduce the possibility of gasoline loss from leaking underground storage tanks .... MTBE losses would be extremely smali from this source.

Environmental Information

As has been repeatedly stated, environmental entry would not occur in every stage of the gasoline marketing chain .... Environmental entry of MTBE from this source would be considerably less than the report indicates.

MTBE is only slightly soluble so environmental fate projections based on this assumption will not be correct.

- 34 -

P.C. 075

ARCO's comments, made with certain other Defendants' explicit or implicit approval, were

misleading when made. The comments improperly downplayed the risks of MTBE

contamination of groundwater and omitted material facts known to Defendants at the time.

106. On or around December 17, 1986, EPA held a Public Focus Meeting to hear comments

on the need for additional testing of MTBE. The minutes of the meeting show that government

officials expressed concern over the need to assess the potential for groundwater contamination.

The minutes show that ARCO and Exxon made a presentation to support the industry position

that additional medical testing ofMTBE was unnecessary. Other Defendants assented to these

representations either explicitly or by their silence.

107. In or around early 1987, certain Defendants formed the "MTBE Committee," with the

express and stated purpose, as set forth in a written agreement, of "addressing the environmental,

health, safety, legislative and regulatory issues concerning MTBE of importance to the public

and the producers and users of MTBE." The MTBE Committee included Defendants BP

Corporation (Amoco), Arco, Chevron Texaco (Chevron), Citgo, ExxonMobil (Exxon), Shell, and

Sunoco, among others .

. 108. The MTBE Committee lauded itself as "being a source of information to MTBE

producers, users, the government and the public" and stated that its goal was to "address

environmental health and safety issues relating to MTBE ... , provide technical data to

appropriate regulatory agencies and legislative bodies ... , conduct[] and fund[] testing of MTBE

required under a Toxic Substances Control Act Section 4 Consent Order or Test Rule ... , [and]

make available to interested parties and the general public technical and scientific information

relating to the use of MTBE in fuels."

- 35 -

P.C. 076

109. On January 29, 1987, the MTBE Technical Subcommittee, a subcommittee of the MTBE

Committee, had its first meeting. The meeting minutes, circulated February 2, 1987, indicate:

[T]he plan of attack on the combined response to the EPA on the ITC report is as follows: Since each producer must respond to the EPA before February 12 on the SA and SD [sic] questions and many will respond individually to production and economic questions whlch were also sought by EPA, a letter will be sent by George Dominguez requesting that information requested by the EPA be sent to the MTBE · Committee before February 9. A form will be included in ·George's letter .... the Technical Committee will then meet on February 19 to combine the three reports from the working groups and draft a response to the EPA whlch will then be passed on to the Steering Committee for their approval on February 20 ... The combined response to the EPA will be submitted by February 27, to be followed shortly thereafter by a formal visit to EPA. Dominguez will meet with EPA and notify them that the MTBE Committee has been formed and will be submitting its overview~

110. Although Defendants were keenly aware that the EPA was interested in obtaining more

information about MTBE in groundwater, the Defendants, generally, were not forthcoming with

their responses. On February 12, 1987, Arco Chemical responded to the EPA's request for

information about "data gaps" concerning MTBE's environmental and health effects in a letter

stating:

Item D requests more information on the presence and persistence of MTBE in groundwater. We are not aware of any incidents where MTBE contaminated groundwater at manufacturing facilities. Where gasoline containing MTBE is stored at refineries, terminals, or service stations, there is little information on MTBE in groundwater. We feel there are no unique handling problems when gasoline containing MTBE is compared to hydrocarbon-only gasoline.

111. At nearly the same time that Arco Chemical was telling the EPA that MTBE posed no

significant environmental or health problems, Arco Chemical admitted to other Defendants that

it "had no data to refute the claims made in the Garrett Report that MTBE posed a significant ·

threat of groundwater contamination."

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P.C. 077

112. On or around February 27, 1987, the MTBE Committee submitted written comments

drafted to convince the EPA not to require additional health and environmental testing ofMTBE.

The information was misleading and false. For example, the MTBE Committee provided

information to the EPA representing that MTBE is only slightly soluble in water, that potential

environmental exposure is not high, and that MTBE has excellent biodegradation characteristics.

The MTBE Committee's Statement added:

The following discussion establishes that there is no evidence that MTBE poses any significant risk of harm to health or the environment, that human exposure to MTBE and release of MTBE to the environment is negligible, that sufficient data exists to reasonably determine or predict that manufacture, processing, distribution, use and disposal of MTBE will not have an adverse effect on health or the environment, and that testing is therefore not needed to develop such data. Furthermore, issuance of a test rule requiring long term chronic testing will have a significant adverse environmental impact.

113. The MTBE Committee's agenda is reflected in the following excerpt from those

comments addressed to the issue of medical testing:

If a test rule is issued requiring chronic testing that will take 3-4 years to complete, great uncertainty will be created as to whether MTBE is a safe fuel additive. As a result, demand for MTBE and expansion of productive capacity is not likely to grow significantly. Refiners will be likely to commit capital to more costly alternative methods of octane enhancement such as isomeriZation and reformate plants that do not have the environmental benefits of MTBE. Thus, requiring long term testing of MTBE will have a significant adverse environmental and economic impact.

114. The MTBE Committee acknowledged in its February 27, 1987 comments that MTBE had

not been the subject of long term chronic health testing, but claimed that such testing was

unnecessary. Under the heading "MTBE in Groundwater," it stated that:

[T]he results of a number of acute and sub-chronic health effect studies are presented in the Health Effects Summary of this report. These data suggest that the odor detection level of 700 ppb (approximately 0.7 mg/l) is such that the organoleptic properties of

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P.C. 078

MTBE are sufficient to protect against human ingestion of toxic quantities of MTBE.

The Committee sought to represent that MTBE did not present a health risk, without conducting

the research needed to reach such a conclusion.

115. On the issue of biodegradation, the MTBE Committee publicly stated that "a Japanese

study ... reports that MTBE in the presence of gasoline has excellent biodegradation

characteristics." This representation, however, omitted the contrary and more accurate

information that MTBE was already known to be recalcitrant to biodegradation. This significant

misrepresentation further illustrates the efforts of certain Defendants to conceal evidence from

government regulators and the public about the actual risk that MTBE poses to groundwater.

116. On or around January 21, 1988, MTBE and/or gasoline manufacturers and distributors,

including BP Corporation (Amoco), ExxonMobil (Exxon) and Sunoco among others, signed a

Testing Consent Order with EP A.3 Those companies, however, subsequently convinced EPA

that the chemical fate of MTBE was sufficiently UJtderstood so that it posed no undue risk to the

environment, and further testing was not necessary.

117. The oil industry, including certain Defendants, thus succeeded in withholding their

knowledge concerning the fate and transport of MTBE from the EPA.

118. The MTBE Committee's representations provide evidence of a pattern of exaggerating

MTBE' s environmental benefits while understating or concealing its environmental hazards, all

of which Defendants knew or should have known at the time. The comments also reveal the

plans to forestall all public scrutiny of Defendants' decision to increase concentrations of MTBE

in gasoline and avoid or obstruct important health and environmental safety research that would

3 Testing Consent Order on Methyl Tert-Butyl Ether and Response to the Interagency Testing Committee, 53 Fed. Reg. 62 (1988).

- 38 -

P.C. 079

have corroborated Defendants' knowledge ofMTBE's harmful effect on groundwater. In making

and supporting, and/ or not correcting, such representations, the Defendants demonstrated their

willingness to place their economic interests above the health, property and well-being of

citizens of the State, particularly, and the American public, generally. These statements also

confirm that Defendants intended to continue to use MTBE without regard to its impact on the

State and the environment, and that some Defendants intended to affirmatively prevent

governments and citizens, including the State, from becoming aware of the potential for

contamination and/or impact of contamination from MTBE.

119. Although the MTBE Committee represented to the EPA that the Committee was going to

"address environmental issues related to MTBE by a) collecting data from member companies

and other sources, and b) sponsoring programs to develop data unavailable from other sources,"

the MTBE Committee did no such thing. The MTBE Committee's Charter statement was

intended to mislead the government and the public, including the State. The MTBE Committee

disbanded approximately one year after achieving its goal of preventing testing.

E. Defendants Combined to Protect the Use of MTBE

120. The State realleges and reaffirms each and every allegation set forth in all preceding

paragraphs as if fully restated in this section.

121. At all times relevant to this lawsuit, Defendants knew or should have known of the

hazards which MTBE posed to groundwater throughout Vermont. Defendants combined and

acted in concert throughout the relevant time period to ensure their ability to use MTBE as an

oxygenate in gasoline.

122. Defendants have demonstrated a pattern and practice of failing to warn the public, those

that handle gasoline containing MTBE, water providers, federal and state regulators, and federal

- 39 -

P.C. 080

and state governments about MTBE and its harmful effects on human health and the

environment.

123. Indeed, oftentimes the Oil Industry in general and various Defendants in particular,

provided inaccurate and misleading information a\Jout MTBE and its characteristics, both when

they had an affirmative duty to provide honest information without inquiry, and/or in response to

direct inquiries by the EPA and others for such information.

Ad Hoc MTBE Group

124. One of the earlier examples of a concerted effort to protect MTBE involved the Ad Hoc

MTBE Group created in 1979, whose sole purpose was to assess the health effects of MTBE and

conduct toxicological testing on MTBE.

125. Members of the Ad Hoc MTBE Group included Defendants Arco, Gulf, Exxon, Phillips,

Texaco, and Shell.

126. This group supported certaip. limited studies on MTBE.

127. Even though the Ad Hoc MTBE Group members specifically agreed that they had a duty

to make the studies public, they did not immediately publish the studies. Rather, they waited an

unreasonable and unjustified period of time after completion to publish them. And when the Ad

Hoc MTBE Group finally published the studies, the abstracts were misleading and did not

accurately describe their results.

128. The Ad Hoc MTBE Group routinely reported its on-going efforts to the members of the

API Toxicology Committee, whose members were aware of the studies and aware that they were

not being reported within a reasonable. time after completion. Members of the API Toxicology

Committee in that general time frame included Defendants Conoco, BP, Marathon, Texaco,

Exxon, Shell, Mobil, Arco, Unocal, Sun, Phillips, Gulf, and Chevron.

- 40 -

P.C. 081

129. As a direct result of these actions, public health officials did not have the information that

was available to the Defendants because it was not in the public domain. Public health officials,

accordingly, could not use the information when responding to the public's health effects

concerns.

130. As a result of these Defendants' collective actions, regulators and the public were kept in

the dark regarding MTBE's health effects. The full understanding ofMTBE's risks, which

ultimately resulted in MTBE largely being removed from gasoline in the United States, was

significantly delayed.

The Oxygenated Fuel Association's MTBE Committee

131. On November 1, 1986, the ITC transmitted its nineteenth report to the EPA, and the

report included an "intent to designate" MTBE under§§ 8(a) and 8(d) of the Toxic Substances

Control Act.

132. The ITC's presentation indicates that the designation "will allow preliminary review of

health and safety data which will be used by the Committee to either designate or not designate

MTBE in a subsequent report to the Administrator."

133. The ITC recommended that MTBE be tested for "chemical fate" including "monitoring

studies to determine typical concentrations of MTBE at representative sites where MTBE

containing gasoline is trans_ferred." In addition, the Test Rules Development Branch requested

"more information on the presence and persistence of MTBE in groundwater."

134. In response, the MTBE Committee was formed in January of 1987, under the auspices of

the OF A. Members of MTBE Committee included Defendants Texaco, Exxon, Citgo, Phillips,

Amoco, Conoco, Valero, and Sun.

- 41 -

P.C. 082

135. One of the MTBE Committee's stated purposes, as reflected inthe proposal for its

formation, was to "handle the development of communication between companies and the EPA."

136. The "rationale behind the establishment of an MTBE group" was "not only because of

the EPA action which might necessitate [study of the] toxicological and environmental effects of

MTBE," but "in order to provide an organization that would be responsive to the overall needs of

the development of MTBE itself."

137. On February 27, 1987, the MTBE Committee presented a Statement to the EPA relative

to the Federal Register announcement of the ITC's intention to designate MTBE for priority

testing. In the MTBE Committee's Statement, its members represented to the EPA that:

The following discussion establishes that there is no evidence that MTBE poses any significant risk of harm to health or the environment, that human exposure to MTBE and release of MTBE to the environment is negligible, that sufficient data exists to reasonably determine or predict that manufacturer, processing, distribution, use and disposal of MTBE will not have an adverse effect on health or· the environment, and that testing is therefore not needed to develop such data. Furthermore, issuance of a test rule requiring long term chronic testing will have a significant adverse environmental impact.

138. Despite the representation that they would collect and provide data from member

companies to the EPA and the general public, the MTBE Committee members provided a

statement that they knew was false.

139. The MTBE Committee was largely successful in its purpose ofreducing testing and

protecting MTBE. Although the EPA initially expressed interest in requiring testing with respect

to the environmental aspects of MTBE, the Oil Industry ultimately signed a Consent Agreement

with the EPA that did not require such testing.

140. The Oil Industry's response to the Garrett Report, described above, provides another

example of the Defendants' coordinated effort to protect MTBE and its use as an oxygenate.

- 42 -

P.C. 083

141. Various Defendants' involvements in these committees and others reflect their general

participation in this combined effort.

142. Such activities were not limited to industry-wide organization committees.

14 3. Defendant Amoco coordinated the formation of the "Consumers for Fuel Quality"

lobbying association to oppose alcohol fuel blend mandates and companies involved with this

group included Exxon, Marathon, Phillips, Unocal, Mobil and others.

144. Had Defendants been open and honest about MTBE instead of doing their best to protect

it, the publicity and interest in MTBE that began to develop later would have occurred

substantially earlier than they did.

145. Illustrative of the delay in knowledge, the Defendants already knew and had discussed

internally in the early-to-mid- l 980s all of the areas of concern that the EPA discussed years later

in its March 2000 Advance Notice of Intent to Initiate Rulemaking. Had the Defendants

disclosed these concerns in the late 1980s, it is unlikely that the EPA or Congress would have

approved the use of MTBE in gasoline.

146. The Defendants possessed information concerning MTBE' s fate and transport, its low

biodegradation rate, and its taste and odor thresholds at the time of the Clean Air Act

Amendments and the subsequent regulatory negotiations with the EPA.

14 7. Certain Defendants' representatives formed part of the group involved in assisting the

federal government in drafting regulations for the enforcement and requirements under the Clean

Air Act Amendments of 1990.

148. In order to ensure that only MTBE-favorable information was presented to the EPA by

the Oil Industry, the representatives frequently met to determine what information the

Defendants would and would not disclose to the federal government.

- 43 -

P.C. 084

149. Defendants failed to disclose to the EPA information concerning MTBE's negligible

biodegradation rate and its probable long-term presence in groundwater.

150. Defendants failed to disclose to the EPA information concerning MTBE's low taste and

odor detect thresholds and, accordingly, the adverse impact that a very small release of MTBE

into an aquifer could have on water supplies.

151. Defendants failed to disclose to the EPA information concerning the known releases of

MTBE into the environment, the characteristics of such releases, the number of these releases

with the limited use of MTBE prior to 1990 and any projections of potential contamination of

public water supplies from a widespread use ofMTBE in gasoline.

152. Defendants failed to disclose to the EPA information concerning the significant

environmental risk that MTBE presented to groundwater, aquifers, and private and public

drinking water wells.

153. Defendants also failed to disclose to the EPA information concerning the extent of their

near-total commitment to MTBE as their oxygenate to comply with the CAAA, and the hundreds

of millions of dollars that Defendants had already committed to producing or purchasing MTBE

before the regulatory process was even completed.

154. Defendants also worked in concert against other retail providers of gasoline and other

companies to limit or block ethanol as an alternative permitted oxygenate.

F. Defendants Misrepresented And/Or Withheld Their Knowledge About MTBE's Risks

155. Defendants misrepresented MTBE's properties and/or withheld information even as they

.were insisting that no such information existed.

156. On April 1-2, 1987, George Dominguez of the MTBE Committee gave an oral

presentation at a Conference on Alcohols and Octane. Mr. Dominguez represented that "MTBE

- 44-

P.C. 085

removal from groundwater is consistent with commercial experience. MTBE gasoline spills have

been effectively dealt with." Although the MTBE Committee was represented to have been

formed to address environmental issues and to make available to the general public information

regarding MTBE use in fuels, Mr. Dominguez did not inform the audience that MTBE is

different from the other components of gasoline, that it is resistant to biodegradation, that it is

difficult to remediate, 9r that it causes a greater risk of groundwater contamination.

157. In 1994, in response to an article that raised questions about the environmental and health

benefits of MTBE, an official with the API, an agent of Defendants, wrote to rebut what he

called "an inaccurate and negative view of methyl tertiary butyl ether (MTBE), one of the

oxygenates that help make gasoline cleaner burning by reducing carbon monoxide emissions."

The letter unambiguously represented that there was "no basis to question the continued use of

MTBE." Given information known to Defendants and API at the time, this statement

misrepresented to the general public the safety of gasoline with MTBE and concealed known

hazards.

158. As the reality of widespread MTBE groundwater contamination started coming to light,

Defendants continue to mislead. For example, in April 1996, the Oxygenated Fuels Association,

an agent of Defendants, published and distributed a pamphlet titled "Public Health Issues and

Answers" that stated: "On rare occasions, MTBE has been. discovered in private drinking water

wells where the source of MTBE has been attributed to leaks from nearby underground storage

tanks." OFA expressed confidence that federal regulations and industry practices made such

contamination largely a thing of the past. Such minimizing and misleading communication

concealed from public officials, persons and entities engaged in the storage, transport, handling,

retail sale, use, and response to spills of such gasoline (referred to in this Complaint as

- 45 -

P.C. 086

"downstream. handlers") and the general public the dangers posed by MTBE and omitted and

concealed information required to reduce and respond to such dangers.

159. In its April 1996 pamphlet, OFA also suggested that MTBE in groundwater actual~y

provides a public and environmental health service. According to OF A's reasoning, when

MTBE pollutes water it "can serve as an early indicator of gasoline contamination in

groundwater, triggering its cleanup and remediation, and limiting the probability of harm from

the usual constituents of gasoline."

160. This "canary-in-the-coal-mine" spin, repeated often by Defendants, rings false in light of

the fact that MTBE is usually not merely the first but also the worst, and sometimes the only,

contaminant imported to groundwater by gasoline.

161. Had Defendants warned the government, users, and the general public of the known

hazards MTBE presented to groundwater and drinking water supplies, the applicable federal and

state agencies would have required alternatives and demanded that Defendants provide

environmentally responsible gasoline free of MTBE.

162. As a result of Defendants' failure to warn of the hazards posed by MTBE contamination

of groundwater, the State was deprived of facts from which its injury from MTBE contamination

could reasonably have been inferred, prevented, and/or mitigated.

G. MTBE has had a Predictably Catastrophic Effect on Groundwater and Groundwater Wells

163. Before the 1980s, production and sales totals for MTBE were negligible, but by 1996,

MTBE ranked second among all organic chemicals produced in the United States, with virtually

the entire production going into gasoline. As discussed above, Defendants dramatically

increased their use ofMTBE in gasoline following the RFG program's creation.

-46 -

P.C. 087

164. Since gasoline containing MTBE at increased levels was introduced in the early 1990s,

the United States Geological Survey ("USGS") has reported that MTBE is the second most

frequently detected chemical in groundwater in. the United States. MTBE-contaminated wells

were found from coast-to-coast with serious incidents in states from Vermont to California.

165. The USGS annually tests the groundwater not near any known gasoline leaks or spills,

and detected MTBE in over 20% of aquifers tested in places where high MTBE-content gasoline

was used.

166. A September 15, 1999 report by a special EPA Blue Ribbon Panel stated that MTBE is a

"threat to the nation's drinking water resources"; that MTBE "has caused widespread and serious

contamination"; and that MTBE is found in 21 % of ambient groundwater tested in areas where

MTBE is used in RFG areas. As stated, the EPA's review of existing information on

contamination of drinking water resources by MTBE "indicates substantial evidence of a

significant risk to the nation's drinking water supply."

167. In its September 15, 1999 report, the EPA Blue Ribbon Panel recommended substantial

reductions in MTBE use and some Panel members recommended that it be eliminated entirely.

The Panel also recommended accelerating, particularly in areas where high MTBE-content

gasoline was used, assessments of drinking water protection areas required under the Safe

Drinking Water Act. The Panel further recommended "a nationwide assessment of the incidence

of contamination of private wells by components of gasoline" and "regular water quality testing

of private wells. "4

4 "Achieving Clean Air and Clean Water: The Report of the Blue Ribbon Panel on Oxygenates in Gasoline" (Sept. 15, 1999).

- 47 -

P.C. 088

168. Based upon the recommendations of the Blue Ribbon Panel, the EPA initiated another

Advanced Notice of Proposed Rulemaking regarding MTBE under the Toxic Substances Control

Act in an effort to eliminate or limit the use of MTBE as a fuel additive in gasoline.

169. The State of Vermont has experienced extensive environmental contamination from

MTBE.

H. Despite Vermont's MTBE ban, new MTBEcontamination continues to be discovered.

170. In Vermont, MTBE has contaminated public drinking water supplies, public drinking

water wells, private drinking water wells, UST sites, natural resources, groundwater, and other

property and waters. This contamination damages these resources, threatens State citizens'

health, safety, and welfare, and interferes with the use of these precious resources.

171. Given MTBE's properties, including its resistance to degradation, MTBE plumes from

releases that occurred years ago in Vermont continue to travel in the groundwater and cause

initial groundwater contamination in new locations, adversely impacting public and private

drinking wells as well as the general condition of the public-trust resource.

172. Despite Vermont's MTBE ban, new MTBE contamination continues to be found in new

locations in Vermont's environment. Over the past six years, testing at sites and monitoring or

production wells across the State has revealed for the first time newly discovered MTBE

contamination in groundwater that was not reasonably discoverable prior to then.

1 73. In some instances, the State has traced these recent initial detections to newly discovered

leaks or other faults in UST systems. In other instances, MTBE' s presence in the groundwater

andlor soil was unknown, undetected and not reasonably discoverable until soil testing was

prompted by, for example, a newly discovered leaking UST or UST removal. In yet other

instances, only the subsequent appearance of a petroleum odor in a well reasonably enabled

- 48 -

P.C. 089

individuals to locate and identify an underlying contaminant plume, containing MTBE, within an

aquifer.

174. Other testing in Vermont indicates past releases that only recently contaminated test and

production wells.

175. Upon information and belief, MTBE's presence and migration in Vermont's

groundwater, absent large-scale and costly remediation, is expected to continue for many years

and will continue to threaten both known an~ unknown public and private wells throughout that

period, as well as threatening Vermont's groundwater generally.

I. Collective liability and indivisible injuries; punitive damages

176. As discussed above, it is.impossible, based on physical characteristics, to identify the

manufacturer or refiner of any given quantity of gasoline that was the source of MTBE found in

surface water, groundwater, or water wells. The State must therefore pursue all Defendants,

jointly and severally, for those injuries that Defendants have collectively visited upon the State.

Defendants are collectively liable under traditional causation theories as well as theories of

market share liability, alternative liability, concert of action liability, commii;igled product

liability, and/or enterprise liability for injuries caused by Defendants.

177. Defendants knew that it was substantially certain that their acts and omissions described .

above would threaten public health and result in extensive contamination of the State's property

and waters, and public and private drinking water supplies. Defendants' conduct was

outrageously reprehensible and malicious. Defendants acted and/or failed to act with conscious

and deliberate disregard for a known, substantial, and intolerable risk of harm, with the

knowledge that their acts or omissions were substantially certain to result in the threatened harm,

- 49 -

P.C. 090

and/or as a matter of free and intentional business choices. Such conduct was not the result of a

mistake of fact or law, honest error or judgment, overzealousness, or other human failing.

VII. FIRST CAUSE OF ACTION

Civil Action for Natural Resources Damages and Restoration, 10 V.S.A. § 1390

(All Defendants)

178. The State realleges and reaffirms each and every allegation set forth in all preceding

paragraphs as if fully restated in this section.

179. In June 2008 the Legislature declared that "[i]is the policy of the state that the

groundwater resources of the state are held in trust for the public." 10 V.S.A. § 1390. It is also

the policy of the State "that the state shall protect its groundwater resources to maintain high-

quality drinking water" and "that the groundwater resources of the state shall be managed to

minimize the risks of groundwater quality deterioration .... " Id.

180. In accordance with such policy, the State must manage its groundwater resources for the

benefit of its citizens, "who hold and share rights in such waters."

181. The State, as trustee, is authorized to bring a cause of action to recover damages to and

restoration of natural resources held in trust by the State.

182. By engaging in the acts and omissions alleged in this Complaint, Defendants have altered

the character and/or quality of the groundwater of the State of Vermont and unreasonably

interfered with the use and enjoyment of trust rights.

183. The Defendants' conduct unreasonably interfered with trust rights by causing statewide

contamination of groundwater.

- 50 -

P.C. 091

184. Public and private drinking water supply wells draw their water from the groundwater

held in trust for the public. The presence of MTBE has thus interfered with public and private

drinking water supplies.

185. As a direct and proximate result of Defendants' acts and omissions as alleged in this

Complaint, MTBE has unreasonably interfered with trust rights by causing statewide

contamination of groundwater, drinking water supplies, public drinking water supply wells,

private wells, and other waters and property of the State.

186. As a further direct and proximate result of the acts and omissions of the Defendants

alleged in this Complaint, the State has sustained and will sustain substantial expenses and

damages, for which defendants are strictly, jointly, and severally liable.

187. The injuries to the State's property and waters caused andJor threatened by Defendants'

acts and omissions as alleged in this Complaint are indivisible.

188. Defendants' reprehensible conduct promoting sales ofMTBE and/or gasoline containing

MTBE was undertaken with conscious, willful, and wanton disregard of the probable dangerous

consequences of that conduct and its foreseeable impact upon the State of Vermont, and warrants

punitive damages. Defendants' conduct was outrageously repreh~nsible and malicious.

Defendants acted and/or failed to act with conscious and deliberate disregard for a known,

substantial, and intolerable risk of harm, with the knowledge that their acts or omissions·were

substantially certain to result in the threatened harm, andJor as a matter of free and intentional

business choices. Therefore, the State requests an award of punitive damages in an amount

reasonable, appropriate, and sufficient to punish Defendants and deter them from committing the

same or similar acts in the future.

- 51 -

P.C. 092

VIII. SECOND CAUSE OF ACTION

Groundwater Protection Act, 10 V.S.A. § 1410

(All Defendants)

189. The State realleges and reaffirms each and every allegation set forth in all preceding

paragraphs as if fully restated in this section:

190. The.State of Vermont is a "person" as defined by 10 V.S.A. § 1410(b)(3).

191. By engaging in the acts and omissions alleged in this Complaint, Defendants have altered

the character and/or quality of the groundwater of the State of Vermont. For example, as

discussed above, MTBE is associated with significant adverse health effects in humans and

animals and can impart a foul taste and odor to drinking water at low concentrations.

192. This alteration caused unreasonable harm in the form of statewide contamination of

groundwater, drinking water supplies, public drinking water supply wells, private wells, UST.

sites, public property, and/or other waters and property of the State.

193. MTBE has affected the waters of the State in a profound and unreasonable way,

compromising their use for household purposes including drinking, cooking, and bathing, and

risking public health via exposure to MTBE. In addition, the contamination poses an

extraordinary and unjust financial burden on the State and its citizens, who bear the costs of

testing, monitoring, and remediation although Defendants profited from the sale of MTBE­

containing gasoline.

194. The Act authorizes the State to seek equitable relief and/or damages for the unreasonable

harm caused by MTBE contamination.

195. As a direct and proximate result of Defendants' acts and omissions as alleged in this

Complaint, the State's property and waters were and are contaminated with MTBE. The State

- 52 -

P.C. 093

has incurred, is incurring, and will incur, investigation, remediation, cleanup, restoration,

removal, treatment and monitoring costs and expenses related to contamination of the State's

groundwater, including drinking water, for which defendants are strictly, jointly, and severally

liable.

196. As a further direct and proximate result of Defendants' acts and omissions alleged in this

Complaint, the State has sustained and will sustain other substantial expenses and damages, for

which Defendants are strictly, jointly, and severally liable.

197. The injuries to the State's property and waters caused and/or threatened by Defendants'

acts and omissions as alleged in this Complaint are indivisible.

198. Defendants' reprehensible conduct to promote sales ofMTBE and/or gasoline containing

MTBE was undertaken with conscious, willful, and wanton disregard of the probable dangerous

consequences of that conduct and its foreseeable impact upon the State of Vermont. Defendants'

conduct was outrageously reprehensible and malicious. Defendants acted and/or failed to act

with conscious and deliberate disregard for a known, substantial, and intolerable risk of harm,

with the knowledge that their acts or omissions were substantially certain to result in the

threatened harm, and/or as a matter of free and intentional business choices. Therefore, the State

requests an award of punitive damages in an amount reasonable, appropriate, and sufficient to

punish Defendants and deter them from committing the same or similar acts in the future.

IX. THIRD CAUSE OF ACTION

Public Nuisance

(All Defendants)

199. The State realleges and reaffirms each and every allegation set forth in all preceding

paragraphs as if fully restated in this section.

- 53 -

P.C. 094

200. Defendants have manufactured, distributed, marketed and promoted their product in a

manner that created or participated in creating a public nuisance that unreasonably endangers or

injures the property, health, safety and welfare of the general public and the State of Vermont,

causing inconvenience and annoyance.

201. Defendants, by their negligent, reckless, and willful acts and omissions set forth above,

have, among other things, knowingly unleashed massive, long-lasting, and still spreading

contamination of groundwater and drinking water wells statewide in Vermont, having concealed

the threat from all, thereby causing MTBE contamination of the State's groundwater and

contamination and threat of contamination of wells within the State.

202. The public nuisance caused, contributed to, maintained, and/or participated in by

Defendants, and each of them, has substantially and unreasonably interfered with, obstructed

and/or threatened, among other things, Vermonters' common public rights to enjoy a water

supply free from unacceptable health risk, taste, odor, pollution, and contamination as well as the

State's parens patriae ability to protect, conserve and manage the State's waters, which are by

law precious and invaluable public resources held by the State in trust for the benefit of the

public.

203. Each Defendant has, at times relevant to this action, caused, maintained, participated in

and/ or assisted in the creation of such public nuisance. Among other things, each Defendant is a

substantial contributor to such public nuisance as follows:

a. Defendants manufactured, promoted, marketed, distributed, refined, supplied,

sold, and/or otherwise placed into the stream of commerce MTBE and/or gasoline

containing MTBE when they knew; or reasonably should have known, that

- 54-

P.C. 095

gasoline containing MTBE would then be placed into leaking gasoline delivery

systems, including those in the State;

b. Defendants manufactured, promoted, marketed, distributed, refined, supplied,

sold, and/or otherwise placed into the stream of commerce MTBE andJor gasoline

containing MTBE that was delivered into the State (and areas affecting the State's

property and waters), when they knew, or reasonably should have known, that

MTBE would be released even more readily than the constituents of conventional

gasoline from gasoline delivery systems; and when released, MTBE would spread

farther and faster than other components of gasoline, resist biodegradation,

contaminate soils, groundwater, and surface water, including drinking water

supplies, and, ultimately, be difficult and costly to remove; arid

c. Defendants manufactured, promoted, marketed, distributed, refined, supplied,

sold, and/or otherwise placed into the stream of commerce MTBE and/or gasoline

containing MTBE that was delivered into the State (and areas affecting the State's

property and waters),.when they knew, or reasonably should have known, that

MTBE would be released into the environment and would contaminate the State's

property and waters.

204. Defendants also had first-hand knowledge and experience regarding leaking gasoline

delivery systems and releases of MTBE to groundwater from those systems. These defendants

obtained such first-hand knowledge and experience because each of them owned, operated

and/or controlled individual gasoline stations and/or were aware of leaks at terminals, service

stations and refineries.

- 55 -

P.C. 096

205. Despite their knowledge that contamination of the State's property and waters with

MTBE was the inevitable consequence of their conduct as alleged in this Complaint, Defendants

failed to provide any warnings or special instructions, failed to take any other precautionary

measures to prevent or mitigate such contamination, and/or affirmatively misrepresented the

hazards ofMTBE in their product infoimation and/or instructions for use.

206. Indeed, through their Material Safety Data Sheets, Defendants represented that gasoline

containing MTBE could be handled in the same fashion as conventional gasoline, and required

no special measures to protect against, respond to, or mitigate suspected releases to the

subsurface.

207. Defendants knew, or in the exercise of reasonable care should have known, that the

introduction and use of MTBE in gasoline would and has unreasonably and seriously

endangered, injured, and interfered with the ordinary comfort, use, and enjoyment of property

and vital water resources relied upon by the State.

208. The public nuisance caused, contributed to, maintained, and/or participated in by

Defendants has caused and/or threatens to cause substantial injury to the State's property and

waters, in which the public has interests represented by and protected by the State in its parens

patriae capacity. The public nuisance has also caused and/or threatens to cause substantial

injury to property directly owned by the State.

209. The contamination of the State's property and waters with MTBE alleged in this

Complaint has varied over time and has not yet ceased. MTBE continues to threaten, migrate

into, and enter the State's property and waters. MTBE contamination is a current as well as

prospective public nuisance.

- 56 -

P.C. 097

210. As a direct and proximate result of Defendants' acts and omissions, the State's property

and waters were and are contaminated with MTBE. The State has incurred, is incurring, and will

incur, investigation, remediation, cleanup, restoration, removal, treatment and monitoring costs

and expenses related to contamination of the State's property, surface water, groundwater,

drinking water supplies, and water wells, for which defendants are jointly and severally liable.

211. As a further direct and proximate result of the Defendants' acts and omissions, the State

has sustained and will sustain other substantial expenses and damages, for which defendants are

jointly and severally liable.

212. The injuries to the State's property and waters caused andior threatened by Defendants'

acts and omissions as alleged in this Complaint are indivisible.

213. Defendants' reprehensible conduct to promote sales ofMTBE andior gasoline containing

MTBE was undertaken with conscious, willful,. and wanton disregard of the probable dangerous

consequences of that conduct and its foreseeable impact upon the State of Vermont. Defendants'

conduct was outrageously reprehensible and malicious. Defendants acted andior failed to act

with conscious and deliberate disregard for a known, substantial, and intolerable risk of harm,

with the knowledge that their acts or omissions were substantially certain to result in the

threatened harm, and/ or as a matter of free and intentional business choices. Therefore, the State

requests an award of punitive damages in an amount reasonable, appropriate, and sufficient to

punish Defendants and deter them from committing the same or similar acts in the future.

- 57 -

P.C. 098

X. FOURTH CAUSE OF ACTION

Private Nuisance

(All Defendants)

214. The State realleges and reaffirms each and every allegation set forth in all preceding

paragraphs as if fully restated in this section.

215. The State's property and waters have been contaminated by MTBE as a direct and

proximate result of the intentional and unreasonable, negligent and reckless conduct of

Defendants, all as alleged in this Complaint.

216. As a direct and proximate result of Defendants' acts and omissions creating the above­

described nuisance, the State has suffered injuries from contamination of State-owned property,

water, and/or wells. Defendants' acts and omissions have substantially, intentionally, and

unreasonably interfered with, obstructed, violated, and/or threatened, among other things, the

State's interests in its property, water, and/or wells. This harm far outweighs any utility or

benefit derived from this intentional conduct.

21 7. As a direct and proximate result of Defendants' acts and omissions as alleged in this ·

Complaint, the State's property and waters were and are contaminated with MTBE. The State

has incurred, is incurring, and will incur, investigation, remediation, cleanup, restoration,

removal, treatment and monitoring costs and expenses related to contamination of the State's

property, surface water, groundwater, drinking water supplies, and/or water wells, for which

defendants are jointly and severally liable.

218. As a further direct and proximate result of Defendants' acts and omissions alleged in this

Complaint, the State has sustained and will sustain other expenses and damages, for which

defendants are jointly and severally liable.

- 58 -

P.C. 099

219. The injuries to the State's property and waters caused and/or threatened by Defendants'

acts and omissions as alleged in this Complaint are indivisible.

220. Defendants' reprehensible conduct to promote sales ofMTBE and/or gasoline containing

MTBE was undertaken with conscious, willful, and wanton disregard of the probable dangerous

consequences of that conduct and its foreseeable impact upon the· State of Vermont. Defendants'

conduct was outrageously reprehensible and malicious. Defendants acted and/or failed to act

with conscious and deliberate disregard for a known, substantial, and intolerable risk of harm,

with the knowledge that their acts or omissions were substantially certain to result in the

threatened harm, and/or ·as a matter of free and intentional business choices. Therefore, the State

requests an award of punitive damages in an amount reasonable, appropriate, and sufficient to

punish Defendants and deter them from committing the same or similar acts in the future.

XI. FIFTH CAUSE OF ACTION

Trespass

(All Defendants)

221. The State realleges and reaffirms each and every allegation set forth in all preceding

paragraphs as if fully restated in this section.

222. The State has significant property interests in the waters of the State, which the State

holds in trust for the benefit of the public. These property rights and interests include, but are not

limited to, its parens patriae and public-trust interest and authority in protecting such waters

from contamination and pollution.

223. In addition, the State owns in fee certain property within the State, including lands, water

supplies, and water wells.

- 59 -

P.C. 100

224. Defendants and their agents and employees knew, or in the exercise of reasonable care

should have known, that MTBE is extremely hazardous to groundwater, surface water, and

public water systems, including the property and interests of the State.

225. Defendants' acts and omissions, as alleged in this complaint, directly and proximately

caused and continue to cause MTBE to intrude onto State property, contaminate water systems,

surface water, groundwater systems, and zones of influence of the areas that supply production

wells within the State.

226. At the time of Defendants' acts and omissions, Defendants knew with substantial

certainty that MTBE would reach onto State property, contaminate water systems, surface water,

. groundwater systems, and zones of influence of the areas that supply production wells within the

State. Such knowledge was based on Defendants' knowledge of the properties of MTBE and

their knowledge and experience regarding leaking gasoline delivery systems and releases of

MTBE to groundwater from those systems. Despite this knowledge, Defendants refined and

marketed gasoline with MTBE with a profit motive in a way that has harmed the State.

227. As a direct and proximate result of the trespass, the State has been damaged and is

entitled to compensatory damages for the costs of investigation, remediation, and treatment,

damages for loss of use and enjoyment, diminution in property values, cost of restoring the

properties to their original conditions, and/ or other relief the State may elect at trial.

228. As a direct and proximate result of Defendants' acts and omissions as alleged in this

Complaint, the State's property and waters were and are contaminated with MTBE. The State

has incurred, is incurring, and will incur, investigation, remediation, cleanup, restoration,

removal, treatment and monitoring costs and expenses related to contamination of the State's

- 60 -

P.C. 101

property, surface water, groundwater, drinking water supplies, and water wells, for which

defendants are jointly and severally liable.

229. As a further direct and proximate result of Defendants' acts and omissions alleged in this

Complaint, the State has sustained and will sustain other substantial expenses and damages, for

which defendants are jointly and severally liable.

230. The injuries to the State's property and waters caused and/or threatened ·by Defendants'

acts and omissions as alleged in this Complaint are indivisible.

231. Defendants' reprehensible conduct to promote sales of MTBE and/or gasoline containing

MTBE was undertaken with conscious, willful, and wanton disregard of the probable dangerous

consequences of that conduct and its foreseeable impact upon the State of Vermont. Defendants'

conduct was outrageously reprehensible and malicious. Defendants acted and/or failed to act

with conscious and deliberate disregard for a known, substantial, and intolerable risk of hann,

with the knowledge that their acts or omissions were substantially certain to result in the

threatened hann, and/or as a matter of free and intentional business choices. Therefore, the State

requests an award of punitive damages in an amount reasonable, appropriate, and sufficient to

punish Defendants and deter them from committing the same or similar acts in the future.

XII. SIXTH CAUSE OF ACTION

Negligence

(All Defendants)

232. The State realleges and reaffirms each and every allegation set forth in all preceding

paragraphs as if fully restated in this section.

233. As manufacturers, refiners, formulators, distributors, suppliers, sellers, marketers,

shippers and handlers of petroleum products, including gasoline containing MTBE, Defendants

- 61 -

P.C. 102

owed a duty to the State as well as to all persons whom Defendants' petroleum products might

foreseeably harm to exercise due care in the design, manufacturing, formulation, handling,

control, disposal, promotion, marketing, sale, distribution, testing, labeling, use, warning, and

instructing for use ofMTBE and/or gasoline containing MTBE.

234. Defendants had a duty and the financial and technical means to test MTBE and g~oline

containing MTBE, and to warn public officials, downstream handlers, and the general public of

the hazardous characteristics of MTBE.

23 5. Defendants had a duty not to contaminate the environment.

236. At times relevant to this litigation, Defendants knew or should have known that:

a. Unintended discharges of gasoline are commonplace;

b. When gasoline containing MTBE is released into the environment, MTBE has a tendency to mix with groundwater and migrate great distances;

c. MTBE is highly soluble in water and many times more soluble in water than the other organic (BTEX) components of gasoline;

d. When gasoline containing MTBE is released into the environment, MTBE persists over long periods of time because MTBE is recalcitrant to biodegradation and bioremediation;

e. Very low concentrations of MTBE can ruin the taste and smell of water;

f. MTBE is a known animal carcinogen and a possible human carcinogen;

g. MTBE greatly increases the importance of preventing leaks of gasoline;

h. MTBE increases the need to maintain underground storage tanks, prevent overfills, and respond immediately to the loss of any gasoline containing MTBE;

1. MTBE creates the need to issue warnings to all groundwater users in the area of any spill of gasoline containing MTBE; and

J. MTBE creates a need for more regular testing and monitoring of wells for early detection of MTBE.

- 62 -

P.C. 103

23 7. The foregoing facts relating to the hazards which MTBE poses to groundwater are not the

sort of facts which the State, downstream handlers, and the general public could ordinarily

discover or protect themselves against absent sufficient warnings.

238. Defendants have negligently breached their duties of due care to the State, downstream

handlers, and the general public by{ among other things:

a. failing to adequately test, identify and remediate wells that are contaminated with MTBE;

b. forming joint committees and task-forces to promote and defend MTBE while concealing the threat MTBE poses to groundwater;

c. voluntarily undertaking to conduct and report research related to the environmental hazards and purported benefits of gasoline containing MTBE and not conducting and reporting that research in a truthful manner;

d. marketing, touting, and otherwise promoting the benefits of gasoline mixed with MTBE without disclosing the truth about the environmental and potential health hazards posed by MTBE;

e. failing to eliminate or minimize the harmful impacts and risks posed by gasoline containing MTBE;

f. failing to curtail or reduce MTBE' s distribution;

g. failing to instruct downstream handlers and the general public about the safe handling and use of gasoline containing MTBE;

h. failing to inspect, test, and take the necessary steps to prevent their gasoline distribution and storage system from releasing MTBE to groundwater or threatening such release;

I. negligently releasing MTBE into the environment; and/or

J. failing to warn and instruct downstream handlers and the general public about the risks to groundwater posed by gasoline containing MTBE, about the necessary precautions and steps to prevent or minimize spills and leaks of gasoline in distribution, storage and use, and about how to remediate such spills and leaks promptly.

23 9. As a direct and proximate result of Defendants' acts and omissions as alleged in this

Complaint, the State's property and waters were and are contaminated with MTBE. The State

- 63 -

P.C. 104

has incurred, is incurring, and will incur, investigation, remediation, cleanup, restoration,

removal, treatment, and monitoring costs and expenses related to contamination of the State's

property, surface water, groundwater, drinking water supplies, and water wells, for which

defendants are jointly and severally liable.

240. As a further direct and proximate result of the acts and omissions of the Defendants

alleged in this Complaint, the State has sustained and will sustain other substantial expenses and

damages, for which defendants are jointly and severally liable.

241. The injuries to the State's property and waters caused and/or threatened by Defendants'

·acts and omissions as alleged in this Complaint are indivisible.

242. Defendants knew that it was substantially certain that their acts and omissions described

above would threaten public health and cause extensive contamination of public drinking water

supplies. Defendants' conduct in continuing to promote MTBE was outrageously reprehensible.

243. Defendants' reprehensible conduct to promote sales ofMTBE and/or gasoline containing

MTBE was undertaken with conscious, willful, and wanton disregard of the probable dangerous

consequences of that conduct and its foreseeable impact upon the State of Vermont. Defendants'

conduct was outrageously reprehensible and malicious. Defendants acted and/or failed to act

with conscious and deliberate disregard for a known, substantial, and intolerable risk of harm,

with the knowledge that their acts or omissions were substantially certain to result in the

thre~tened harm, and/or as a matter of free and intentional business choices. Therefore, the State

requests an award of punitive damages in an amount reasonable, appropriate, and sufficient to

punish Defendants and deter them from committing the same or similar acts in the future.

- 64 -

P.C. 105

XIII. SEVENTH CAUSE OF ACTION

Strict Liability for Design Defect and/or Defective Product

(All Defendants)

244. The State realleges and reaffirms each and every allegation set forth in all preceding

paragraphs as if fully restated in this section.

245. Defendants during the relevant time period were designers, maniifacturers, refiners,

formulators, distributors, sellers, marketers and suppliers of petroleum products, including

gasoline containing MTBE.

246. As manufacturers, designers, refiners, formulators, distributors, suppliers, sellers and

marketers of petroleum products, including gasoline containing MTBE, Defendants owed a duty

.to all persons whom Defendants' petroleum products might foreseeably harm, including the State

and its citizens, not to market any product which is unreasonably dangerous for its intended and

foreseeable uses.

247. Defendants represented, asserted, claimed, and warranted that gasoline containing MTBE

could be used in the same manner as gasoline not containing MTBE, or otherwise did not require

any different or special handling or precautions.

248. When Defendants placed gasoline containing MTBE into the stream of commerce, it was

defective, unreasonably dangerous, and not reasonably suited for its intended, foreseeable and

ordinary transportation, storage, handling, and uses for the following reasons:

a. Unintended discharges of gasoline are commonplace throughout Vermont;

b. When gasoline containing MTBE is released into the environment, MTBE has a tendency to mix with groundwater and migrate great distances;

c. MTBE is highly soluble in water and many times more soluble in water than the other organic (BTEX) components of gasoline;

- 65 -

P.C. 106

d. When gasoline containing MTBE is released into the environment, MTBE persists much longer than the other organic (BTEX) components of gasoline, because MTBE is recalcitrant to biodegradation and bioremediation;

e. Very low concentrations of MTBE will ruin the taste and smell of water;

f. MTBE is a known animal carcinogen and a possible human carcinogen and otherwise unhealthy to ingest;

g. Defendants with knowledge of the risks failed to use reasonable care in the design of gasoline containing MTBE;

h. Gasoline cont8:ining MTBE poses greater dangers to groundwater than would be expected by ordinary persons such as the State, downstream handlers and the general public exercising reasonable care;

1. The risks which gasoline containing MTBE poses to groundwater outweigh MTBE's utility in boosting the octane level of gasoline and/or supposedly reducing air pollution by increasing the oxygen content of gasoline; and

J. Safer alternatives to MTBE have existed and been available to Defendants at all times relevant to this litigation, for the purposes of increasing both the octane level and oxygen content of gasoline. Such sensible alternatives to MTBE included, but are not limited to, ethanol and other "oxygenates" and "octane enhancers."

249. The above-described defects exceeded the knowledge of the ordinary person and by the

exercise of reasonable care the State would not be able to avoid the harm caused by gasoline

withMTBE.

250. Gasoline containing MTBE was distributed and sold in the manner intended or

reasonably foreseen by the Defendants, or as should have been reasonably foreseen by

Defendants.

251. Gasoline containing MTBE reached consumers and the environment in a condition

substantially unchanged from that in which it left Defendants' control.

252. Gasoline containing MTBE failed to perform as safely as an ordinary consumer would

expect when used in its intended and reasonably foreseeable manner.

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P.C. 107

253. As a direct and proximate result of Defendants' acts and omissions as alleged in this

Complaint, the State's property and waters were and are contaminated with MTBE. The State

has incurred, is incurring, and will incur, investigation, remediation, cleanup, restoration,

removal, treatment, and monitoring costs and expenses related to MTBE contamination of

surface water, groundwater, drinking water supplies, and water wells, for which defendants are

strictly, jointly, and severally liable.

254. As a :further direct and proximate result of the acts and omissions of the Defendants

alleged in this Complaint, the State has sustained and will sustain other substantial expenses and

damages, for which defendants are strictly, jointly, and severally liable.

255. The injuries to the State's property and waters caused and/or threatened by Defendants'

acts and omissions as alleged in this Complaint are indivisible.

256. Defendants' reprehensible conduct to promote sales ofMTBE and/or gasoline containing

MTBE was undertaken with conscious, willful, and wanton disregard of the probable dangerous

consequences of that conduct and its foreseeable impact upon the State of Vermont. Defendants'

conduct was outrageously reprehensible and malicious. Defendants acted and/or failed to act

with conscious and deliberate disregard for a known, substantial, and intolerable risk of harm,

with the knowledge that their acts or omissions were substantially certain to result in the

threatened haim, and/ or as a matter of free and intentional business choices. Therefore, the State

requests an award of punitive damages in an amount reasonable, appropriate, and sufficient to

punish Defendants and deter them from committing the same or similar acts in the future.

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P.C. 108

XIV. EIGHTH CAUSE OF ACTION

Strict Liability for Failure to Warn

(All Defendants)

257. The State realleges and reaffirms each and every allegation set forth in all preceding

paragraphs as if fully restated in this section.

258. As manufacturers, distributors, suppliers, sellers, and marketers of gasoline containing

MTBE, Defendants had a duty to issue warnings to the State, the public, public officials, and

downstream handlers of the risk posed by MTBE.

259. Defendants knew that gasoline mixed with MTBE would be purchased, transported,

stored, handled, and used without notice of the hazards which MTBE poses to groundwater and

wells.

260. Defendants' failure to warn of these hazards made gasoline containing MTBE

unreasonably dangerous.

261. At all times relevant to this litigation, Defendants have had actual and/or. constructive

knowledge of the following facts which rendered MTBE hazardous to groundwater and

production wells:

a. Unintended discharges of gasoline with MTBE are commonplace;

b. When gasoline containing MTBE is released into the environment, MTBE has a tendency to mix with groundwater and migrate great distances;

c. MTBE is highly soluble in water and many times more soluble in water than the other organic (BTEX) components of gasoline;

d. When gasoline containing MTBE is released into the environment, MTBE persists much longer than the other organic (BTEX) components of gasoline, because MTBE is recalcitrant to biodegradation and bioremediation;

e. · At extremely low concentrations, MTBE can have a distressing and objectionable taste and odor that renders water unusable;

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P.C. 109

f. -MTBE is a known animal carcinogen and a possible human carcinogen and is otherwise unhealthful when ingested;

g. MTBE greatly increases the importance of preventing leaks of gasoline, and for the first time makes it necessary"to prevent very small quantities of gasoline from escaping containment to avoid groundwater contamination;

h. MTBE increases the need to maintain underground storage tanks, prevent overfills, and respond immediately to the loss of any gasoline containing MTBE;

i. MTBE creates the need to issue warnings to all groundwater users in the area of any spill of gasoline containing MTBE; and

J. MTBE creates the need for more regular testing and monitoring of wells for early detection of MTBE.

262. The foregoing facts relating to the hazards that MTBE poses to groundwater are not the

sort of facts that, at the relevant times, the State, downstream handlers, or the general public

could ordinarily discover or protect themselves against absent sufficient warnings.

263. Defendants breached their duty to warn by unreasonably failing to provide warnings

concerning any of the facts alleged here to the State, public officials, downstream handlers,

and/or the general ·public.

264. Defendants' failure to warn proximately caused reasonably foreseeable injuries to the

State. The State and others would have heeded legally adequate warnings and MTBE would not

have gained approval in the marketplace for use in gasoline, and/or gasoline containing MTBE

would have been treated differently in terms of procedures for handling, storage, emergency

response and/or environmental clean-up. Since the source ofMTBE in all contaminated wells

and groundwater is gasoline, the absence of warnings was the proximate cause of such

contamination.

265. As a direct and proximate result of Defendants' acts and omissions as alleged in this

Complaint, the State's property and waters were and are contaminated with·MTBE. The State

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P.C. 110

has incurred, is incurring, and will incur, investigation, remediation, cleanup, restoration,

removal, treatment and monitoring costs and expenses related to contamination of the State's

property, surface water, groundwater, drinking water supplies, and water wells, for which

defendants are strictly, jointly, and severally liable.

266. As a further direct and proximate result of the acts and omissions of the Defendants

alleged in this Complaint, the State has sustained and will sustain other substantial expenses and

damages, for which defendants are strictly, jointly, and severally liable.

267. The injuries to the State's property and waters caused and/or threatened by Defendants'

acts and omissions as alleged in this Complaint are indivisible.

268. Defendants' reprehensible conduct to promote sales ofMTBE and/or gasoline containing

MTBE was undertaken with conscious, willful, and wanton disregard of the probable dangerous

consequences of that conduct and its foreseeable impact upon the State of Vermont. Defendants'

conduct was outrageously reprehensible and malicious. Defendants acted and/or failed to act

with conscious and deliberate disregard for a known, substantial, and intolerable risk of harm,

with the knowledge that their acts or omissions were substantially certain to result in the

threatened harm, and/ or as a matter of free and intentional business choices. Therefore, the State

requests an award of punitive damages in an amount reasonable, appropriate, and sufficient to

punish Defendants and deter them from committing the same or similar acts in the future.

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P.C. 111

XV. NINTH CAUSE OF ACTION

Civil Conspiracy

(Against Defendants Exxon Mobil Corporation, ExxonMobil Oil Corporation, Shell Oil Company, Shell Oil Products Company LLC, Shell Petroleum Inc., Shell

Trading (US) Company, Eguilon Enterprises LLC, Atlantic Richfield Company, Chevron U.S.A. Inc., TMR Company, TRMI-H LLC, BP Products North America

Inc., Mobil Corporation, CITGO Petroleum Corporation, CITGO Refining and Chemicals Company L.P., Sunoco Inc. (R&M))

269. The State realleges and reaffirms each and every allegation set forth in all preceding

paragraphs as if fully restated in this section.

270. As described earlier in this Complaint, the above listed Defendants ("Conspiracy

D~fendants") knowingly and voluntarily engaged in a common plan and concerted action to

commit, assist, andJor encourage an illegal or tortious act among themselves. Specifically, these

Defendants formed joint task forces and committees and otherwise colluded for the avowed

purpose of providing information about MTBE to the public and to government agencies, but

with the true, unlawful purposes of:

a. creating a market for MTBE with full knowledge of the hazards which MTBE poses to groundwater throughout the State of Vermont;

b. concealing the nature of MTBE and its harmful impact on the State and the environment; and

c. maximizing profits in a way Conspiracy Defendants knew would require them to contaminate waters, including groundwater, in the state.

271. These actions were not undertaken by each such Defendant acting individually; rather,

the Conspiracy Defendants in many instances joined together and agreed to so act.

272. As a direct result of these concerted actions on behalf of the Oil Industry and the

I

Conspiracy Defendants Defendants to protect MTBE, MTBE use increased dramatically in the

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P.C. 112

1990s and, as a result, MTBE has contaminated the nation's groundwater in general and water·

resources in Vermont in particular.

273. The Conspiracy Defendants carried out their conspiracy by one or more of the following

wrongful overt acts or omissions:

a. Intentionally misrepresenting to the EPA and the public that MTBE was -safe and did not pose a risk to groundwater;

b. Concealing MTBE's dangers (including MTBE's adverse fate-and-transport characteristics and its propensity to contaminate groundwater) from the government and the public by, among other means, repeatedly requesting that information about the dangers and health effects of MTBE be suppressed and not otherwise published by third parties and by downplaying any adverse findings related to MTBE;

c. Concealing MTBE' s dangers from downstream handlers and consumers; and

d. Collectively deciding to use MTBE rather than other, safer oxygenates to satisfy the requirements of the RFG program because MTBE was the most profitable option.

274. As a result of the Conspiracy Defendants' continued and ongoing pattern and practice of

intentionally failing to warn, intentionally failing to provide information, and being dishonest

when asked, information about MTBE's risk to human health and the environment that was

within Conspiracy Defendants' possession was withheld from the public and governmental

regulators during t4e.time when the releases of gasoline with MTBE occurred in the state.

275. As a direct and proximate result of the Conspiracy Defendants' acts and omissions as

alleged in this Complaint, the State's property and waters were and are contaminated with

MTBE. The State has incurred, is incurring, and will incur, investigation, remediation, cleanup,

restoration, removal, treatment, and monitoring costs and expenses related to contamination of

the State's property, surface water, groundwater, drinking water supplies, and water wells for

which the Conspiracy Defendants are jointly and severally liable.

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P.C. 113

276. The injuries to the State's property and waters caused and/or threatened by the

Conspiracy Defendants' acts and omissions as alleged in this Complaint are indivisible.

277. Further, as discussed above, it is impossible to identify, based on physical characteristics,

the manufacturer or refiner of any given quantity of gasoline that was the source of MTBE found

in surface water, groundwater, or water wells. The State must therefore pursue the Conspiracy

Defendants, jointly and severally, for those injuries that they have collectively visited upon the

State. The Conspiracy Defendants are collectively liable under traditional causation theories as

well as theories of market share liability, alternative liability, concert of action liability,

commingled product liability, and/or enterprise liability for injuries caused by these Defendants.

278. The Conspiracy Defendants' reprehensible conduct, including their misrepresentations

and withholding of information, to promote sales of MTBE and/ or gasoline containing MTBE

was undertaken with conscious, willful, and wanton disregard of the probable dangerous

consequences of that condu.ct and its foreseeable impact upon the State of Vermont. These

Defendants' conduct was outrageously reprehensible and malicious. They acted and/or failed to

act with conscious and deliberate disregard for a known, substantial, and intolerable risk of harm,

with the knowledge that their acts or omissions were substantially certain to result in the

threatened harm, and/or as a matter of free and intentional business choices. Therefore, the State

requests an award of punitive damages in an amount reasonable, appropriate, and sufficient to

punish these Defendants and deter them from committing the same or similar acts in the future.

PRAYER FOR RELIEF

The State of Vermont seeks judgment against all Defendants for:

1. Compensatory damages arising from MTBE contamination of natural resources,

groundwater, release sites, public drinking water supply wells, private drinking water

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P.C. 114

supply wells, and other State and public properties and waters, according to proof,

including, but not limited to:

(i) natural resources damages;

(ii) costs of investigation;

(iii) costs of testing and monitoring;

(iv) costs of providing water from an alternate source;

(v) costs of installing and maintaining wellhead treatment;

(vi) costs of installing and maintaining a wellhead protection program;

(vii) costs of installing and maintaining an early warning system to detect

MTBE and/or TBA before it reaches wells;

(viii) costs of remediating MTBE and/or TBA from natural resources including

groundwater;

(ix) costs of remediating MTBE and/or TBA contamination at release sites;

(x) any other response costs or other expenditures incurred to address MTBE

and/or TBA contamination;

(xi) interest on the damages according to law;

2. Injunctive and equitable relief to compel Defendants to abate the continuing nuisance and

trespass by removing MTBE and TBA from soil and groundwater;

3. Punitive damages;

4. Costs (including reasonable attorney fees, court costs, and other expenses of litigation);

5. Prejudgment interest;

6. Any other and further relief as the Court deems just, proper, and equitable.

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P.C. 115

. JURY TRIAL DEMANDED

The State demands a trial by jury.

Dated: June 5, 2014

STATE OF VERMONT

WILLI~fl· SORRELL

A~:: GENE~. ~+-(,,~

~;!es Robert F. McDougall Assistant Attorneys General 109 State Street Montpelier, VT 05609-1001 Phone: 802-828-3186 . scot.kline@state. vt. us gavin. boy les@state. vt. us ro bert.mcdougall@state. vt. us

Of Counsel:

Scott Summy, licensed in Texas, New York, and North Carolina Celeste Evangelisti, licensed in Texas, New York, and California Carla Burke, licensed in Texas and New York BARON & BUDD, P.C. 3102 Oak Lawn A venue, Suite 1100 Dallas, TX 75219-3605 Phone: 214-521-3605 Fax: 214-520-1181 ssummy@baronbudd.com cevangelisti@baronbudd.com

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P.C. 116

Robert J. Gordon, licensed in New York Robin Greenwald, licensed in New York and New Jersey William A Walsh, licensed in New York and New Jersey WEITZ & LUXENBERG, P.C. 180 Maiden Lane, 17th Floor New York, NY 10038-4925 Phone: 212-558-5500 Fax: 212-558-5506 wwalsh@weitzlux.com

Matthew F. Pawa, licensed in Massachusetts and Washington, D.C. Benjamin A. Krass, licensed in Massachusetts PAWALAWGROUP,P.C. 1280 Centre Street, Suite 230 Newton Centre, MA 02459 Phone: 617-641-9550 Fax: 617-641-9551 mp@pawalaw.com bkrass@pawalaw.com

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P.C. 117